Gandy v. Williams

          El Paso County District Court No. 16CV45 Honorable Eric Bentley, Judge

          Announced August 1, 2019 Robert D. Gandy, Pro Se

          Philip J. Weiser, Attorney General, Nicole S. Gellar, First Assistant Attorney General, Denver, Colorado, for Defendants-Appellees

          ORDER

          NAVARRO JUDGE.

         ¶ 1 Plaintiff, Robert D. Gandy, appeals the district court's order denying his motion to amend his complaint against officials of the Colorado Department of Corrections (CDOC) and closing the case. His complaint stems from the denial of his application to serve his prison sentence in Canada, his birthplace. We affirm. In doing so, we clarify that (1) while the CDOC's regulation entitles an inmate to review of a transfer application by the CDOC's Executive Director, the decision whether to grant the application lies within the Executive Director's discretion; and (2) when exercising that discretion, the Executive Director may decide that the inmate's need for treatment militates against an immediate transfer.

         I. Background

         ¶ 2 This is not Gandy's first appeal to this court. Like this one, his earlier appeals concerned his request to be transferred to the Canadian penal system. As discussed in Gandy v. Raemisch, 2017 COA 110, ¶ 2 (Gandy IV), Gandy is a Canadian citizen serving a habitual criminal life sentence in the CDOC's custody. See also Gandy v. Colo. Dep't of Corr., 2012 COA 100 (Gandy III); Gandy v. Colo. Dep't of Corr., (Colo.App. No. 07CA2381, Nov. 26, 2008) (not published pursuant to C.A.R. 35(f)) (Gandy II); Gandy v. Colo. Dep't of Corr., (Colo.App. No. 03CA1056, June 24, 2004) (not published pursuant to C.A.R. 35(f)) (Gandy I). He has argued that an international treaty addressing prisoner exchanges and its implementing statutes and regulations require CDOC officials to consent to his transfer to Canada. See Treaty on the Execution of Penal Sentences, Can.-U.S., Mar. 2, 1977, 30 U.S.T. 6263 (the Treaty); see also 18 U.S.C. §§ 4100-4102 (2018); § 24-60-2301, C.R.S. 2018; DOC Admin. Reg. 550-05 (AR 550-05). The CDOC has denied his applications.

         ¶ 3 In this case, Gandy filed a transfer application in September 2015. After it was denied, he filed a complaint in the district court against CDOC Executive Director and CDOC Director of Prisons (defendants). Among other claims, Gandy sought mandamus relief directing defendants to process his prisoner-transfer application according to CDOC regulation AR 550-05. The court granted defendants' motion to dismiss, and Gandy appealed.

         ¶ 4 In Gandy IV, a division of this court rejected most of Gandy's contentions but held that he had sufficiently stated a mandamus claim. The division concluded that the CDOC's regulation required the Director of Prisons to forward Gandy's transfer application to the Executive Director, or his or her designee, for final review and decision. Gandy IV, ¶ 22. Because the Director of Prisons had not done so, the division reversed the judgment of dismissal on this issue and remanded to the district court to issue an order directing the Director of Prisons to forward the transfer application to the Executive Director. Id. at ¶ 43.

         ¶ 5 On remand, the CDOC amended AR 550-05. Applying the amended regulation, the Executive Director considered and denied Gandy's transfer application.^[1] Defendants filed this new decision in the district court as an attachment to a status report. The court directed the CDOC to provide a written explanation for the new decision to Gandy. The Executive Director then issued the following memo to Gandy:

It is the policy of the Colorado Department of Corrections to return convicted foreign national offenders to their country of origin consistent with the interests of the state of Colorado, the United States Department of Justice, and the individual offender.

A review of your criminal history, however, indicates a pattern of sexually deviant behaviors that require treatment. Per Administrative Regulation 700-19, the Colorado Department of Corrections provides specialized sex offense-specific treatment to offenders with identified needs to reduce recidivism and enhance public safety. While you are currently identified as ineligible for sex offender treatment due to not being within four years of your parole eligibility date, which is presently July 22, 2022, I expect and encourage you to participate in treatment when the opportunity becomes available to you.

Without treatment, returning you to your country of origin at this time is inappropriate and not in the best interest of the state of Colorado, the United States Department of Justice or you as an individual offender with untreated programmatic needs.

         ¶ 6 After defendants informed the court of the Executive Director's memo and asked for the case to be closed, the court solicited Gandy's view as to the further handling of the case. In response, he filed a status report asking for time to file an amended complaint challenging the latest denial of this transfer application. Shortly thereafter, he submitted a motion to amend his complaint. Defendants opposed his motion, arguing that his suggested amendments could not withstand a motion to dismiss and were therefore futile under American Civil Liberties Union of Colorado v. Whitman, 159 P.3d 707, 712 (Colo.App. 2006). Before the court ruled, Gandy again moved to amend pursuant to "C.R.C.P. Rule 15(a) and (d)," and he attached an amended complaint. In addition to challenging the denial of his transfer application, his amended complaint alleged that defendants had unlawfully retaliated against him by relocating him to a less desirable facility. Defendants again argued that the proposed claims were futile on the merits.

         ¶ 7 The district court denied Gandy's first motion to amend as moot in light of his second motion. After receiving briefing on his second motion and considering his proposed amended complaint, the court denied it. The court concluded that he had received all the relief ordered by the Gandy IV division and that "[t]o the extent Mr. Gandy now wishes to challenge Defendants' post-remand decision[, ] that is a challenge to a new administrative action that should be brought in a new lawsuit, after exhausting the administrative remedies available to him." In the alternative, the court denied the motion to amend because the proposed claims were futile on the merits. The court closed the case, and Gandy appealed.

         ¶ 8 Because Gandy appears pro se in this court, we liberally construe his filings while applying the same law and procedural rules applicable to a party represented by counsel. See People v. Bergerud, 223 P.3d 686, 696 (Colo. 2010); People v. Wunder, 2016 COA 46, ¶ 16 n.3.

         II. Law Applicable to a Motion to Amend

         ¶ 9 Gandy first contends that the district court erred because he had a right to amend his complaint as a matter of course under C.R.C.P. 15(a). We disagree.

         ¶ 10 Gandy is correct that C.R.C.P. 15(a) permits a party to amend a pleading "once as a matter of course at any time before a responsive pleading is filed." He is also right that a motion to dismiss is not normally considered a responsive pleading for purposes of this rule. See, e.g., Grear v. Mulvihill, 207 P.3d 918, 922 (Colo.App. 2009). Thus, defendants' original motion to dismiss in this case (prior to the appeal in Gandy IV) did not terminate his right to amend. The district court's grant of that motion and its judgment of dismissal, however, did so. A division of this court has explained the pertinent principle:

Read literally, C.R.C.P. 15(a) gives the plaintiff an unlimited right to amend once as a matter of course before an answer is filed. However, when final judgment is entered before a responsive pleading is filed, the liberal approach of C.R.C.P. 15 must be balanced against the value of preserving the integrity of final judgments. Therefore, if final judgment is entered before a responsive pleading has been served, the absolute right to amend the complaint as a matter of course is lost.

Wilcox v. Reconditioned Office Sys. of Colo., Inc., 881 P.2d 398, 400 (Colo.App. 1994) (emphasis added) (citations omitted); see also Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985) ("A motion to dismiss is treated like a responsive pleading when final judgment is entered before plaintiff files an amended complaint. The final judgment precludes plaintiff from amending his complaint as of right pursuant to [a former version of Fed.R.Civ.P. 15(a), which was similar to C.R.C.P. 15(a)].") (citations omitted).

         ¶ 11 Consequently, Gandy's ability to amend his complaint after the district court entered final judgment and after remand from this court was subject to the district court's discretion. See Civil Serv. Comm'n v. Carney, 97 P.3d 961, 966 (Colo. 2004) ("This court has long recognized that trial courts may permit parties to amend pleadings in proceedings conducted after an appellate court's order of remand."). More precisely, the district court retained discretion to grant Gandy leave to amend the pleadings following remand from this court unless the amendment would contravene a mandate that expressly or by necessary implication precluded such amendment. Nelson v. Elway, 971 P.2d 245, 248 (Colo.App. 1998).

         ¶ 12 Defendants have never contended that the mandate in Gandy IV precluded Gandy's proposed amendments, and the district court did not so rule. Rather, defendants acknowledge that the court had the discretion to grant Gandy's motion to amend. In particular, they point to C.R.C.P. 15(d), which authorizes a court to permit "a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." C.R.C.P. 15(d).

         ¶ 13 "Exercise of the trial court's discretion under Rules 15(a) and 15(d) is substantially similar and should be governed by the same considerations." Eagle River Mobile Home Park, Ltd. v. Dist. Court, 647 P.2d 660, 662 n.4 (Colo. 1982). "In deciding whether to grant a motion to amend, the trial court must consider the totality of the circumstances, balancing the policy favoring amendment against the burden the amendment imposes on the other party." Carney, 97 P.3d at 966.

         ¶ 14 Appellate review of the trial court's denial of a motion to amend is generally limited to determining whether the court abused its discretion. Id. Where, however, a court denies leave to amend on grounds that the amendment would be futile because it cannot survive a motion to dismiss, we review that legal question de novo. Benton v. Adams, 56 P.3d 81, 85 (Colo. 2002).

         III. Exhaustion of Administrative Remedies

         ¶ 15 The district court's first reason for denying Gandy's request to amend his complaint was that he still had to exhaust his administrative remedies challenging the Executive Director's post-remand decision.^[2]

         ¶ 16 "No inmate shall bring a civil action based upon prison conditions under any statute or constitutional provision until all available administrative remedies have been exhausted in a timely fashion . . . ." § 13-17.5-102.3(1), C.R.S. 2018. "Failure to allege in the civil action that all available administrative remedies have been exhausted in ...