FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 15, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court JOSHUA JAMES ROBERTSON,
Plaintiff - Appellant,
v. No. 17-3068 (D.C. No. 5:12-CV-03109-SAC) CHAUNCEY BIBY, Chaplain, El Dorado (D. Kan.) Correctional Facility, in his individual and official capacity; RICK BARRETT, Chaplain, El Dorado Correctional Facility, in his individual and official capacity; LARRY HOSHAW, Unit Team Manager, El Dorado Correctional Facility, in his individual and official capacity; JAMES HEIMGARTNER, Warden, El Dorado Correctional Facility, in his individual and official capacity; GLORIA GEITHER, Director of Religious Programs, Kansas Department of Corrections, in her individual and official capacity; DOUGLAS W. BURRIS, Secretary of Corrections Designee, Kansas Department of Corrections, in his individual and official capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Before KELLY, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Kansas prisoner Joshua James Robertson is a Messianic Jew housed in
long-term administrative segregation. He brought suit under the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5,
alleging that restrictions in segregation substantially burdened his religious exercise
by preventing him from hearing the Bible read aloud to him. He asked to be allowed
to possess a “my-iBible,” an MP3 player loaded with an audio recording of the Bible.
The district court dismissed the action for failure to show a substantial burden on
religious exercise, but this court reversed and remanded for further proceedings,
Robertson v. Biby, 647 F. App’x 893, 898 (10th Cir. 2016).
After the remand, prison officials decided to allow Mr. Robertson to possess
the my-iBible and related accessories such as earbud headphones on certain
conditions, including that he not use them in violation of the law or prison policies
and orders. The district court therefore granted the defendants’ motion for summary
judgment based on mootness. The district court also denied Mr. Robertson’s motion
for an award of secretarial fees. Mr. Robertson appealed.
While this appeal was pending, prison officials seized Mr. Robertson’s
earbuds. Mr. Robertson notified this court of the seizure in a motion for injunction
pending appeal. Prison officials responded that Mr. Robertson had been using the
earbuds improperly to listen to an AM/FM mini-radio while out of his cell, in line to
receive medication. They attached documentation of a disciplinary hearing finding
2 Mr. Robertson guilty of violating prison policy and disobeying orders. In reply,
Mr. Robertson argued that the disciplinary documents failed to properly identify the
applicable rule or order, but he did not contest the basic underlying facts—i.e., that
he was using the earbuds to listen to an AM/FM mini-radio while outside his cell.
ANALYSIS
I. Mootness
We review mootness de novo. Ghailani v. Sessions, 859 F.3d 1295, 1300
(10th Cir. 2017). “Article III’s requirement that federal courts adjudicate only cases
and controversies necessitates that courts decline to exercise jurisdiction where the
award of any requested relief would be moot—i.e. where the controversy is no longer
live and ongoing.” Front Range Equine Rescue v. Vilsack, 782 F.3d 565, 568
(10th Cir. 2015) (internal quotation marks omitted). “A case is moot . . . where the
relief sought can no longer be given or is no longer needed.” Id. (internal quotation
marks omitted). When this case was in the district court, Mr. Robertson sought to be
allowed to possess a my-iBible, and prison officials obliged. Thus, the relief
Mr. Robertson sought was no longer needed.
Nearly a year later, prison officials seized the earbuds, allegedly making it
impossible for Mr. Robertson to listen to his my-iBible. But these subsequent events
do not unmoot the case. When a case has become moot while in the district court, we
will not supplement the record with subsequent facts proffered in an effort to
demonstrate the case is not moot. Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1110 n.11 (10th Cir. 2010). If anything, the subsequent
3 events might create a new claim (although we express no opinion on that matter), but
they do not revive the instant suit.
Mr. Robertson suggests that other relief is available, in that he is indigent and
the prison’s property policy bars a third party from donating a replacement my-iBible
or replacement headphones, chargers, or similar accessories. But even if a case is not
constitutionally moot, it may be prudentially moot. “Prudential mootness doctrine
often makes its appearance in cases where a plaintiff starts off with a vital complaint
but then a coordinate branch of government steps in to promise the relief she seeks.”
Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1210 (10th Cir. 2012).
For example, “[s]ometimes the plaintiff will seek an order forcing a department to
take an action that it eventually agrees to take voluntarily.” Id.
That was the situation here; prison officials did what Mr. Robertson originally
requested by allowing him to have the my-iBible and accessories. The appellees
represented to the district court that the Kansas Department of Corrections would
allow a third party to replace the my-iBible or accessories should they stop
functioning. See R., Vol. III at 486. Accordingly, with regard to the claim
Mr. Robertson originally asserted, “there remain[ed] not enough value left for the
courts to add in this case to warrant carrying on with the business of deciding its
merits.” Winzler, 681 F.3d at 1211. And as with constitutional mootness, the
subsequent events do not undermine prudential mootness. In light of the disciplinary
hearing, it seems unlikely at this point that prison officials will allow a third party to
replace the seized headphones. But again, if anything, that situation would create a
4 different claim than the one Mr. Robinson originally brought. While the parties may
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 15, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court JOSHUA JAMES ROBERTSON,
Plaintiff - Appellant,
v. No. 17-3068 (D.C. No. 5:12-CV-03109-SAC) CHAUNCEY BIBY, Chaplain, El Dorado (D. Kan.) Correctional Facility, in his individual and official capacity; RICK BARRETT, Chaplain, El Dorado Correctional Facility, in his individual and official capacity; LARRY HOSHAW, Unit Team Manager, El Dorado Correctional Facility, in his individual and official capacity; JAMES HEIMGARTNER, Warden, El Dorado Correctional Facility, in his individual and official capacity; GLORIA GEITHER, Director of Religious Programs, Kansas Department of Corrections, in her individual and official capacity; DOUGLAS W. BURRIS, Secretary of Corrections Designee, Kansas Department of Corrections, in his individual and official capacity,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Before KELLY, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Kansas prisoner Joshua James Robertson is a Messianic Jew housed in
long-term administrative segregation. He brought suit under the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5,
alleging that restrictions in segregation substantially burdened his religious exercise
by preventing him from hearing the Bible read aloud to him. He asked to be allowed
to possess a “my-iBible,” an MP3 player loaded with an audio recording of the Bible.
The district court dismissed the action for failure to show a substantial burden on
religious exercise, but this court reversed and remanded for further proceedings,
Robertson v. Biby, 647 F. App’x 893, 898 (10th Cir. 2016).
After the remand, prison officials decided to allow Mr. Robertson to possess
the my-iBible and related accessories such as earbud headphones on certain
conditions, including that he not use them in violation of the law or prison policies
and orders. The district court therefore granted the defendants’ motion for summary
judgment based on mootness. The district court also denied Mr. Robertson’s motion
for an award of secretarial fees. Mr. Robertson appealed.
While this appeal was pending, prison officials seized Mr. Robertson’s
earbuds. Mr. Robertson notified this court of the seizure in a motion for injunction
pending appeal. Prison officials responded that Mr. Robertson had been using the
earbuds improperly to listen to an AM/FM mini-radio while out of his cell, in line to
receive medication. They attached documentation of a disciplinary hearing finding
2 Mr. Robertson guilty of violating prison policy and disobeying orders. In reply,
Mr. Robertson argued that the disciplinary documents failed to properly identify the
applicable rule or order, but he did not contest the basic underlying facts—i.e., that
he was using the earbuds to listen to an AM/FM mini-radio while outside his cell.
ANALYSIS
I. Mootness
We review mootness de novo. Ghailani v. Sessions, 859 F.3d 1295, 1300
(10th Cir. 2017). “Article III’s requirement that federal courts adjudicate only cases
and controversies necessitates that courts decline to exercise jurisdiction where the
award of any requested relief would be moot—i.e. where the controversy is no longer
live and ongoing.” Front Range Equine Rescue v. Vilsack, 782 F.3d 565, 568
(10th Cir. 2015) (internal quotation marks omitted). “A case is moot . . . where the
relief sought can no longer be given or is no longer needed.” Id. (internal quotation
marks omitted). When this case was in the district court, Mr. Robertson sought to be
allowed to possess a my-iBible, and prison officials obliged. Thus, the relief
Mr. Robertson sought was no longer needed.
Nearly a year later, prison officials seized the earbuds, allegedly making it
impossible for Mr. Robertson to listen to his my-iBible. But these subsequent events
do not unmoot the case. When a case has become moot while in the district court, we
will not supplement the record with subsequent facts proffered in an effort to
demonstrate the case is not moot. Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1110 n.11 (10th Cir. 2010). If anything, the subsequent
3 events might create a new claim (although we express no opinion on that matter), but
they do not revive the instant suit.
Mr. Robertson suggests that other relief is available, in that he is indigent and
the prison’s property policy bars a third party from donating a replacement my-iBible
or replacement headphones, chargers, or similar accessories. But even if a case is not
constitutionally moot, it may be prudentially moot. “Prudential mootness doctrine
often makes its appearance in cases where a plaintiff starts off with a vital complaint
but then a coordinate branch of government steps in to promise the relief she seeks.”
Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208, 1210 (10th Cir. 2012).
For example, “[s]ometimes the plaintiff will seek an order forcing a department to
take an action that it eventually agrees to take voluntarily.” Id.
That was the situation here; prison officials did what Mr. Robertson originally
requested by allowing him to have the my-iBible and accessories. The appellees
represented to the district court that the Kansas Department of Corrections would
allow a third party to replace the my-iBible or accessories should they stop
functioning. See R., Vol. III at 486. Accordingly, with regard to the claim
Mr. Robertson originally asserted, “there remain[ed] not enough value left for the
courts to add in this case to warrant carrying on with the business of deciding its
merits.” Winzler, 681 F.3d at 1211. And as with constitutional mootness, the
subsequent events do not undermine prudential mootness. In light of the disciplinary
hearing, it seems unlikely at this point that prison officials will allow a third party to
replace the seized headphones. But again, if anything, that situation would create a
4 different claim than the one Mr. Robinson originally brought. While the parties may
have a dispute, it is a different dispute from the one that was before the district court.
Mr. Robertson also argues that the case is not moot because in addition to the
my-iBible, his complaint requested a television and a radio. During the litigation,
however, Mr. Robertson made it patently clear that (1) his goal was to possess the
my-iBible, and (2) his religious needs would not be satisfied by a television or a
radio. See R., Vol. I at 349, 417, 444, 497, 550, 561, 611, 613; R., Vol. III at 20;
see also Robertson, 647 F. App’x at 895 n.4 (“On appeal, Robertson contends that
television programs, radio broadcasts, telephone calls, and clergy visits are all
insufficient to satisfy his religious need to hear the Bible read aloud.”). He went so
far as to assert, both before and after the remand, that the case would be moot if he
received the my-iBible. R., Vol. I at 418; R., Vol. III at 355. Having received his
my-iBible, Mr. Robertson cannot now try to keep this litigation on life-support by
changing his position and belatedly arguing that his religious needs also extend to a
television and a radio.1
II. Secretarial Fees
Mr. Robertson also appeals from the district court’s denial of his motion for an
award of $13,600 in secretarial costs billed to him by his mother. The district court
held that, as a pro se litigant, he was not entitled to an award of attorney’s fees,
1 Because this case is moot, we need not consider Mr. Robertson’s challenges to the district court’s (1) grant of an extension for the defendants to respond to a motion for summary judgment and (2) denial of Mr. Robertson’s two motions for a preliminary injunction. With the case as a whole having been mooted, those questions too are moot. 5 which would include the costs of secretarial assistance. We review de novo that legal
ground for denial of a fee award. See ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d
735, 777 (10th Cir. 2011).
We agree with the district court. A successful RLUIPA claimant may obtain a
fee award under 42 U.S.C. § 1988(b). Bills for the work of legal secretaries come
under the purview of a § 1988 attorney’s fee award. See Missouri v. Jenkins ex rel.
Agyei, 491 U.S. 274, 285 (1989) (holding that § 1988 fee award “must take into
account the work not only of attorneys, but also of secretaries, messengers, librarians,
janitors, and others whose labor contributes to the work product for which an
attorney bills her client”); see also Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243,
1249 (10th Cir. 1998) (holding that “the fees for attorneys, law clerks, and legal
assistants are all determined in the same fashion” “under the rubric of” § 1988). But
as a matter of law, a pro se litigant is not eligible for a § 1988 fee award. Kay v.
Ehrler, 499 U.S. 432, 435, 437-38 (1991); Turman v. Tuttle, 711 F.2d 148, 149
(10th Cir. 1983) (per curiam). Mr. Robertson misplaces his reliance on Burt v.
Hennessey, 929 F.2d 457, 459 (9th Cir. 1991). Even assuming Burt survived Kay
(which was issued soon after Burt was decided), Burt has never been adopted in this
circuit.2
2 In his reply brief, Mr. Robertson argues that “[e]ven if this Court were to hold Burt as ‘not good law’, . . . RLUIPA provides for an award of appropriate relief against a government [and] secretarial costs is an award of appropriate relief.” Reply Br. at 6 (internal quotation marks omitted). We need not decide the question because Mr. Robertson did not raise this argument in his opening brief. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011). 6 CONCLUSION
Mr. Robertson’s motion to proceed without prepayment of costs or fees is
granted. Mr. Robertson is reminded that under 28 U.S.C. § 1915(b), he remains
obligated to pay the full amount of the applicable fees. The motion for an injunction
pending appeal and the motion for an order requiring service are denied as moot.
The judgment of the district court is affirmed.
Entered for the Court
Gregory A. Phillips Circuit Judge