                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         OCT 22 2003
                         UNITED STATES COURT OF APPEALS

                                      TENTH CIRCUIT                  PATRICK FISHER
                                                                              Clerk


 DONALD RAY BEIERLE,

            Plaintiff - Appellant,

      and

 KEVIN CHARLES GWINN,
                                                         No. 03-1174
            Plaintiff,
                                                       (No. 02-M-412)
                                                        (D. Colorado)
 v.

 COLORADO DEPARTMENT OF
 CORRECTIONS; JOE ORTIZ,
 Director of CDOC; TONY REED,
 Warden of BVCF,

            Defendants - Appellees.


                               ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.




        *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      Donald Beierle, pro se, appeals the dismissal of his 42 U.S.C. § 1983 civil

rights complaint challenging the conditions of his prison confinement at Buena

Vista Correctional Facility (“BVCF”). We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm in part, vacate in part, and remand for further

proceedings.

      On February 28, 2002, prisoners Donald Beierle and Kevin Gwinn filed a

complaint naming as defendants the Colorado Department of Corrections

(“CDOC”), the Director of CDOC, Brian Burnett, and the BVCF warden, Tony

Reed. The complaint was signed by Beierle and Gwinn. Beierle also submitted a

motion for certification as a class. In addition, the names, addresses, and

signatures of fifty-four parties were attached declaring that “they are Plaintiff(s),

in the above actions or shall file in concert pursuant to a class action.” (R.

Compl. at 11.)

      Beierle and Gwinn asserted three separate theories for injunctive relief.

First, they alleged that CDOC officials violated the Equal Protection Clause by

treating inmates at BVCF differently than inmates incarcerated at other Level III

secured CDOC facilities, such as requiring significantly more lock-down time and

providing less-equipped law libraries in comparison to other facilities. Second,

they alleged that CDOC officials violated their First and Fourth Amendment

rights, and rights of access to counsel and the courts, by impermissibly opening


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incoming legal mail and “go[ing] through” legal mail in their prison cells during

“shakedown” searches without inmates present. (R. Compl. at 20.) Third, they

alleged that health and sanitary conditions at BVCF constitute cruel and unusual

punishment in violation of the Eighth Amendment. Specifically, they complained

of exposure to asbestos and unsafe asbestos removal practices, an abundance of

mice and mice feces, roaches and vermin in the kitchen, noise and feces from

migrating geese, lack of a sprinkler system, overcrowding, and sewage that backs

up into water supplies in the kitchen, showers, and laundry.

      On June 26, 2002, Beierle and Gwinn filed a motion to amend the

complaint; the amended complaint sought to add additional defendants, numerous

additional complaints, and make changes to their original claims. They also

submitted a second amended complaint, which the district court received but did

not file on August 22, 2002. On August 28, 2002, Beierle filed an affidavit in

support of change of residency stating that he had been transferred from the

BVCF to the Crowley County Correctional Facility on August 14, 2002.

      By an order filed on May 27, 2003, the district court denied Beierle’s

motion to certify a class action, determined that inmates other than Beierle and

Gwinn that sought to be listed as plaintiffs did not meet the requirements for

joinder, and dismissed plaintiff Gwinn for failure to exhaust administrative

remedies. The district court also dismissed Beierle’s substantive claims for


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injunctive relief for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and

denied the motion to amend the complaint. On appeal, Beierle argues, inter alia,

that the district court erred in: (1) denying his request to file a class action; (2)

holding that futility is not an exception to the requirement to exhaust

administrative remedies; (3) denying his request to amend the complaint; and (4)

finding that he did not state a claim for violations of his rights to equal

protection, access to courts and counsel, and freedom from cruel and unusual

punishment. Finally, Beierle requests that we appoint appellate counsel.

      We review the district court's finding that Beierle is not an adequate class

representative for abuse of discretion, see Pilots Against Illegal Dues v. Air Line

Pilots Ass’n, 938 F.2d 1123, 1134 (10th Cir. 1991), and affirm. A class

representative must “fairly and adequately protect the interests of the class.” Fed.

R. Civ. P. 23(a)(4). In Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320,

1321 (10th Cir. 2000), we concluded that a “litigant may bring his own claims to

federal court without counsel, but not the claims of others.” Id. at 1321 (citation

omitted); see also 7A Wright, et al., Federal Practice and Procedure: Civil 2d

§ 1769.1 (2d ed. 1986).

      As to the dismissal of Gwinn for failure to exhaust administrative remedies,

although we have held that futility is not an exception to the requirement that

prisoners must exhaust administrative remedies prior to seeking judicial review,


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see Yousef v. Reno, 254 F.3d 1214, 1221 (10th Cir. 2001), we need not decide

whether the district court acted properly because Gwinn has since been released

from prison and is no longer taking part in this appeal.

      Because we conclude that the proposed amended complaint would not have

cured the deficiencies in the original complaint and sufficed to state a claim for

violations of equal protection, the Eighth Amendment, or access to counsel and

the courts, we determine that the district court acted within its discretion in

denying Beierle’s motion to amend. See Fomon v. Davis, 371 U.S. 178, 182

(1962) (“futility of amendment” is adequate to refuse leave to amend).

      Turning to the district court’s dismissal of Beierle’s substantive claims for

prospective injunctive relief pursuant to Fed. R. Civ. P 12(b)(6), we conclude that

the issues are moot because Beierle’s individual claims for injunctive relief

uniformly pertain to alleged constitutional violations at a single prison compound

where Beierle is no longer incarcerated. 1 We have held that “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.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994).



      1
       In his second amended complaint Beierle sought a damage award, but does
not reassert this request on appeal.

                                         -5-
A claim will be “deemed moot unless a proper judicial resolution settles some

dispute which affects the behavior of the defendant toward the plaintiff.”

McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999) (quotations

omitted). An award of injunctive relief to remedy alleged inadequate conditions

and constitutional violations at BVCF would have no effect on defendants’

behavior towards Beierle. Moreover, Beierle has not alleged facts indicating that

he will be transferred back to BVCF at some date in the future. See id. at 1217

(concluding that the hypothetical possibility that an inmate on supervised release

will violate the terms of his parole and be returned to the same prison cannot

“save an otherwise moot claim for prospective injunctive relief relating to prison

conditions”); see also Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987)

(holding that a prisoner’s transfer moots his request for injunctive relief for denial

of access to courts in the facility from which he was transferred); Beyah v.

Coughlin, 789 F.2d 986, 988 (2d Cir. 1986) (holding similarly in the context of

alleged deprivations of constitutional rights); Martin v. Sargent, 780 F.2d 1334,

1337 (8th Cir. 1985) (holding similarly in the context of inadequate conditions of

confinement); McKinnon v. Talladega County, 745 F.2d 1360, 1363 (11th Cir.

1984) (concluding that a prisoner’s argument that “there is no assurance that he

will not be returned to the [first] jail” is not a defense to mootness). Finally, we

note that the record does not reveal any suggestion that Beierle’s transfer was


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made for the purpose of evading our jurisdiction. See McKinnon, 745 F.2d at

1363.

        For these reasons, we AFFIRM the district court’s order denying class

certification and denying the motion to amend. We     VACATE the district court’s

order dismissing Beierle’s equal protection, Eighth Amendment, and access-to-

counsel and courts claims and    REMAND with instructions that the district court

DISMISS these claims without prejudice as moot. We          GRANT Beierle’s motion

to proceed without prepayment of the filing fee.    However, Beierle remains liable

for the amount of the appellate filing fee and is obligated to continue making

partial payments until the entire fee has been paid. Beierle’s request for counsel

is DENIED .




                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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