     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               August 1, 2019

                                 2019COA118

No. 18CA0865, Gandy v. Williams — Civil Procedure —
Amended and Supplemental Pleadings; Administrative Law —
Colorado Department of Corrections — Transfer of Foreign
National Offenders to Treaty Nations; Court and Court
Procedure — Inmate Lawsuits — Exhaustion of Remedies

     In this case, an inmate in the custody of the Colorado

Department of Corrections (CDOC) filed an application to be

transferred to Canada to serve the remainder of his sentence. The

CDOC’s Executive Director denied the application, and the inmate

sought judicial review. The district court denied relief, and a

division of the court of appeals now affirms that decision. The

division holds 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.
COLORADO COURT OF APPEALS                                          2019COA118


Court of Appeals No. 18CA0865
El Paso County District Court No. 16CV45
Honorable Eric Bentley, Judge


Robert D. Gandy,

Plaintiff-Appellant,

v.

Dean Williams, Executive Director, Colorado Department of Corrections; and
Travis Trani, Director of Prisons, Colorado Department of Corrections,

Defendants-Appellees.


                               ORDER AFFIRMED

                                   Division VII
                          Opinion by JUDGE NAVARRO
                          Dunn and Berger, JJ., concur

                           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
¶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


                                   1
 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


                                   2
 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.



 1 This decision was made by Rick Raemisch, the former Executive
 Director. His successor, Dean Williams, has been substituted as a
 party pursuant to C.A.R. 43(c)(2). The same is true with respect to
 the new Director of Prisons, Travis Trani.

                                    3
           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



                                   4
 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.


                                   5
¶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:




                                       6
             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


                                     7
  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




                                    8
  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




  2In their principal briefs, no party substantively addressed this
  ruling of the district court. Thus, we ordered supplemental briefing
  on the exhaustion issue. We thank the parties for their
  supplemental briefs.


                                    9
  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 accordance with this subsection (1) shall result in

  dismissal of the civil action.” Id.

¶ 17   In his first motion to amend his complaint filed in December

  2017, Gandy said that he was still pursuing administrative

  remedies and he expected exhaustion to be completed in January

  2018.3 He thus asked for more time in which to file an amended

  complaint. (As mentioned, the court ultimately denied this first

  motion as moot.) In February 2018, he filed an amended complaint

  as an attachment to his second motion to amend. In his amended

  complaint, he expressly alleged that he had exhausted

  administrative remedies as to his new claims by then, and he gave

  details of his exhaustion efforts.

¶ 18   Accepting Gandy’s factual allegations as true, we conclude

  that he stated enough to survive a motion to dismiss. See § 13-

  17.5-102.3(1) (providing that “[f]ailure to allege” that administrative

  remedies have been exhausted shall result in dismissal) (emphasis


  3His motion actually stated January “2017,” but he clearly meant
  January “2018” given that he filed the motion in December 2017.

                                        10
  added); see also Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256,

  1259 (Colo. 2000) (when considering a motion to dismiss, a court

  accepts as true the plaintiff’s allegations of material historical fact).

  This conclusion is especially apt given that defendants, in their

  opposition to his amended complaint, did not deny that Gandy had

  exhausted administrative remedies as to his new claims. Likewise,

  in their answer brief in this court, defendants do not deny that he

  did so.

¶ 19   In their supplemental brief, however, defendants argue that

  Gandy did not exhaust administrative remedies. Relying mainly on

  federal cases, they point out that a prisoner must exhaust

  administrative remedies before filing a court claim challenging

  prison conditions, as opposed to filing a claim and then seeking a

  stay to complete the exhaustion process. See, e.g., McKinney v.

  Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). Completing the

  exhaustion process before filing the claim is required because

  “corrective action taken in response to an inmate’s grievance might

  improve prison administration and satisfy the inmate, thereby

  obviating the need for litigation.” Porter v. Nussle, 534 U.S. 516,

  525 (2002). But, according to Gandy’s allegations in his amended


                                     11
  complaint, he had exhausted all administrative remedies prior to

  filing his amended complaint.

¶ 20   Even so, defendants maintain that he could not have

  exhausted administrative remedies as to the amended complaint

  because he was required to do so before he filed this action in 2016.

  Of course, it was impossible for him to do so because his amended

  complaint addresses acts that took place in 2017. And no one

  disputes that he exhausted administrative remedies as to the

  claims in his original complaint filed in 2016. The question here is

  whether Gandy also exhausted administrative remedies as to the

  new claims in his amended complaint. Cf. Graham v. Maketa, 227

  P.3d 516, 519 (Colo. App. 2010) (recognizing that inmate may have

  exhausted administrative remedies as to one claim but not others).

  As explained, he alleged enough to show exhaustion at this stage of

  the litigation.

¶ 21   Hence, the district court erred by denying his motion to amend

  on the ground that he had not exhausted administrative remedies.

                IV. Were the Proposed Amendments Futile?

¶ 22   We now turn to the district court’s alternative rationale for

  denying the motion to amend — Gandy’s proposed amendments


                                    12
  were futile on the merits. An amendment is futile if it “merely

  restates the same facts as the original complaint in different terms,

  reasserts a claim on which the court previously ruled, fails to state

  a legal theory, or could not withstand a motion to dismiss.”

  Whitman, 159 P.3d at 712. While a court accepts as true all

  allegations of material historical fact when assessing a motion to

  dismiss for failure to state a claim, the complaint must “state a

  claim for relief that is plausible on its face.” Warne v. Hall, 2016

  CO 50, ¶¶ 1-2 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

¶ 23   As the district court noted, Gandy sought to amend his

  complaint to assert five claims: (1) a request for mandamus relief

  under C.R.C.P. 106(a); (2) an Administrative Procedure Act

  violation; (3) an equal protection violation; (4) a claim alleging that

  the CDOC Executive Director violated his fiduciary duty; and (5) a

  claim alleging that Gandy’s transfer to a less desirable prison

  violated the First Amendment.

                             A. C.R.C.P. 106(a)

                 1. Mandamus under C.R.C.P. 106(a)(2)

¶ 24   Under C.R.C.P. 106(a)(2), relief may be obtained “[w]here the

  relief sought is to compel a lower judicial body, governmental body,


                                     13
  corporation, board, officer or person to perform an act which the

  law specially enjoins as a duty resulting from an office, trust, or

  station.” Mandamus lies to compel the performance of purely

  ministerial duties involving no discretionary rights and no exercise

  of judgment. Bd. of Cty. Comm’rs v. Cty. Road Users Ass’n, 11 P.3d

  432, 437 (Colo. 2000). It is appropriate only if (1) the plaintiff has a

  clear right to the relief sought; (2) the defendant has a clear duty to

  perform the act requested; and (3) no other remedy is available.

  Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo. 1983).

  Furthermore, mandamus is not appropriate unless all alternative

  forms of relief have been exhausted. Id.

¶ 25   Gandy asserts that, under the CDOC’s regulation, he is

  entitled to be transferred to Canada as long as he has met the

  written eligibility criteria. He maintains that “the plain language of

  the regulation permitting transfer is mandatory.” He is mistaken.

¶ 26   As pertinent here, AR 550-05 provides as follows:

             The DOC is delegated the authority by the
             governor of Colorado to approve the transfer of
             eligible foreign national offenders, pursuant to
             the conditions of current treaties which
             provide for such transfer, and the approval of
             the Department of Justice and the affected
             foreign country. Such transfer is a privilege


                                     14
             and not a right. The governor of Colorado or
             the executive director, at their sole discretion,
             may approve or deny the transfer of an
             offender.

             ....

             The director of Prisons will review the transfer
             application and accompanying
             recommendations and forward them with a
             recommendation to the executive director for
             final review and decision. If the executive
             director denies the offender’s application,
             he/she will be ineligible for reconsideration for
             a period of two years. The offender will receive
             written notice of the denial. Exceptions to the
             two-year period may exist if temporary
             conditions preventing transfers have been
             satisfied.

  AR 550-05(IV)(B), (IV)(D)(6). In the section addressing the

  “Eligibility Criteria for Transfer Consideration,” the regulation lists

  seven conditions as well as a catch-all category: “An offender must

  meet any additional qualification criteria which treaty nations may

  require.” AR 550-05(IV)(C).

¶ 27   AR 550-05 thus entitled Gandy to have his transfer

  application processed, reviewed, and decided by the Executive

  Director and to receive written notice if the application was denied.

  Because those procedures were followed here, the CDOC fulfilled its

  obligations under the regulation.


                                      15
¶ 28   Still, Gandy contends that the denial of his application

  violated AR 550-05’s stated policy, which is 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. The DOC shall house
             offenders consistent with their individual
             custody and program needs and may reduce
             the number of offenders incarcerated in state
             correctional facilities.

  AR 550-05(I) (emphasis added). This policy, however, does not

  create a clear right to be transferred. It requires the CDOC to weigh

  the public interest and the offender’s interests when deciding

  whether to consent to a transfer. And the regulation does not

  impose a clear duty to grant a transfer request. In fact, it plainly

  states that “transfer is a privilege and not a right” and the decision

  to approve or deny a transfer falls within the “sole discretion” of the

  Governor or the Executive Director. AR 550-05(IV)(B).

¶ 29   AR 550-05 comports with the CDOC’s broad discretion over

  the interests of Colorado’s correctional system, individual offenders

  incarcerated there, and their custody and program needs. See, e.g.,

  Reeves v. Colo. Dep’t of Corr., 155 P.3d 648, 651 (Colo. App. 2007)

  (the CDOC has “broad discretion” over “the management of


                                    16
  prisons”); People v. Watson, 892 P.2d 388, 390 (Colo. App. 1994)

  (“[T]ransfer and placement decisions are purely administrative in

  nature and are ‘left to the broad discretion of prison

  administrators.’” (quoting White v. People, 866 P.2d 1371, 1373

  (Colo. 1994))).

¶ 30   Finally, Gandy does not point to any language in either the

  Treaty or Colorado’s implementing statute that requires the CDOC,

  or Colorado generally, to consent to his transfer. Therefore, the

  district court properly concluded that his proposed mandamus

  claim was futile.

             2. Abuse of Discretion under C.R.C.P. 106(a)(4)

¶ 31   Gandy also alleged that the denial of his transfer application

  was “arbitrary and capricious,” and an abuse of discretion.

  Construing his allegations liberally, he asserted a claim under

  C.R.C.P. 106(a)(4). Under that provision, we may review “whether

  the [governmental] body or officer has exceeded its jurisdiction or

  abused its discretion, based on the evidence in the record before the

  defendant body or officer.” C.R.C.P. 106(a)(4)(I).

¶ 32   Prison officials abuse their discretion if they misinterpret

  governing law. Brooks v. Raemisch, 2016 COA 32, ¶ 32. Absent


                                    17
  such a misinterpretation, a reviewing court must uphold a decision

  by prison officials if it has some support in the record. Buenabenta

  v. Neet, 160 P.3d 290, 296 (Colo. App. 2007). “The scope of judicial

  review in this type of case is very limited,” id. (citation omitted), and

  we sit in the same position as the district court. Brooks, ¶ 33.

¶ 33   To the extent Gandy contends that defendants violated the

  regulation, applicable statutes, and the Treaty itself, we disagree.

  Under the Treaty, any transfer depends on the consent of the

  authorities that have custody of the offender. See Treaty, art. I(a),

  art. III, ¶ 3 (“If the authority of the Sending State approves, it will

  transmit the application . . . to the authority of the Receiving

  State.”); id. at art. III, ¶ 5 (“If the Offender was sentenced by the

  courts pursuant to the laws of a state or province of one of the

  Parties, the approval of the authorities of that state or province, as

  well as that of the federal authority, shall be required.”); Gandy IV,

  ¶ 8. Under 18 U.S.C. § 4102(6) (2018), the United States Attorney

  General is authorized “to make arrangements by agreement with

  the States for the transfer of offenders in their custody . . . .”

  Section 24-60-2301 provides that “the governor may, on behalf of

  the state and subject to the terms of the treaty, authorize the


                                      18
  executive director of the [CDOC] to consent to the transfer or

  exchange of offenders . . . .” See Gandy IV, ¶¶ 11-12. These

  authorities recognize that state prison officials have discretion to

  either grant or deny a transfer application.

¶ 34   Gandy contends that denial of his application due to his

  “untreated programmatic needs” violates the state statute and the

  Treaty because neither requires an offender to be “program

  compliant.” But simply because those authorities do not expressly

  mention such a requirement does not prohibit prison officials from

  imposing it if they deem it consistent with the interests of the state

  and the offender. And AR 550-05(I) declares expressly that the

  CDOC shall consider an individual offender’s “custody and program

  needs.” So, Gandy has not shown that defendants misinterpreted

  the governing law.

¶ 35   Moreover, Gandy does not argue that the Executive Director’s

  rationale lacks support in the record. That is, he does not deny

  that his criminal history indicates a pattern of sexually deviant

  behavior that requires specialized sex offense-specific treatment to

  reduce recidivism and enhance public safety. We have no basis to

  second-guess this determination.


                                    19
¶ 36   To the extent Gandy contends that the Executive Director’s

  rationale is manifestly arbitrary or unreasonable, we are not

  persuaded. Gandy appears to argue that, because he will leave

  Colorado if his transfer request is granted, Colorado officials have

  no interest in rehabilitating him. But this argument overlooks his

  own interest in rehabilitation, which the CDOC officials must

  consider. Furthermore, given that Gandy could be released from

  prison as early as 2022, it was not unreasonable for the Executive

  Director to conclude that it is in the public interest to treat him

  before he is transferred out of the CDOC’s custody.

¶ 37   True, Gandy was not yet eligible for the treatment program at

  the time his application was denied. But, as defendants explain,

  Gandy would be eligible soon thereafter (beginning in July or

  August 2018). Thus, requiring him to participate in a treatment

  program before he could be moved to Canada was not an impossible

  or unrealistic condition.

¶ 38   Accordingly, even assuming the truth of Gandy’s factual

  allegations, we cannot conclude that the Executive Director abused

  his discretion when denying Gandy’s transfer application.




                                    20
  Therefore, his amended complaint was futile to the extent it raised a

  claim under C.R.C.P. 106(a)(4).4

                 B. Administrative Procedure Act Claim

¶ 39   AR 550-05 outlines the process under which the CDOC

  Executive Director ultimately considered and denied Gandy’s

  transfer application. Gandy contends that, when promulgating AR

  550-05, the CDOC failed to comply with the rulemaking procedures

  of section 24-4-103, C.R.S. 2018, of the State Administrative

  Procedure Act (APA), §§ 24-4-101 to -108, C.R.S. 2018. As a result,

  he concludes that “the regulation must be deemed void in its

  entirety.” Once again, he is mistaken.

¶ 40   Section 17-1-103(1), C.R.S. 2018, provides that the Executive

  Director has the duty to “manage, supervise, and control the

  correctional institutions operated and supported by the state” and

  “[t]o develop policies and procedures governing the operation of the

  [CDOC].” See Dunlap v. Dep’t of Corr., 2013 COA 63, ¶ 13. “These




  4In his proposed amended complaint, Gandy alleged that the
  Executive Director had violated section 24-18-103, C.R.S. 2018,
  which imposes a fiduciary duty on public officials. Because he does
  not discuss this claim on appeal, however, we deem it abandoned.
  See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).

                                     21
  duties are undeniably broad . . . .” Id.; cf. § 17-1-105(1)(a), C.R.S.

  2018 (Executive Director has power to transfer inmates). Section

  17-1-111, C.R.S. 2018, states that the provisions of title 17

  “relating to the placement, assignment, management, discipline,

  and classification of inmates shall not be subject to section 24-4-

  103, 24-4-105, or 24-4-106” of the APA.

¶ 41   Gandy says this exemption from compliance with the APA does

  not apply to AR 550-05 because it does not concern placement,

  assignment, management, discipline, or classification. We agree

  with defendants, however, that the transfer of an inmate from the

  CDOC’s custody to a foreign nation’s custody involves the

  placement or management of an inmate. Therefore, the plain

  language of section 17-1-111 includes AR 550-05. See Wisdom

  Works Counseling Servs., P.C. v. Colo. Dep’t of Corr., 2015 COA 118,

  ¶¶ 42, 49-50 (recognizing that “management” has broad meaning in

  section 17-1-111). We are not persuaded otherwise by the fact that

  the Executive Director’s authority to consent to an inmate’s serving

  a sentence in a foreign nation derives in part from section 24-60-

  2301. See Dunlap, ¶ 11 (“[T]itle 17 includes broad and extensive

  provisions concerning the authority of the Executive Director . . . to


                                     22
  administer sentences imposed by the courts. Thus, the fact that

  the source of the authority to carry out a death sentence is found in

  section 18-1.3-1204 is not dispositive of whether the regulation

  relates to a matter within title 17.”) (citations omitted).

¶ 42   In sum, because Gandy’s APA claim would not withstand a

  motion to dismiss, the district court correctly denied his proposed

  amendment as futile.

                        C. Equal Protection Claim

¶ 43   According to Gandy, denying his transfer application on the

  basis that he has not yet completed a sex offense-specific treatment

  program violates his equal protection rights because he “is being

  treated more harshly than a person convicted of a violent offense.”

  He says that a violent offender would be eligible for transfer before

  him because such an offender would not be required to complete a

  sex offense-specific treatment program (and thus could be eligible

  for transfer earlier than four years before his or her parole eligibility

  date).

¶ 44   We agree with defendants, however, that Gandy failed to state

  a claim upon which relief could be granted because he is not

  similarly situated with a non-sex offender. “[A] defendant is only


                                     23
  similarly situated with defendants who commit the same or similar

  acts[.]” People v. Fritschler, 87 P.3d 186, 188 (Colo. App. 2003).

  Therefore, the Equal Protection Clause did not prohibit the CDOC

  from deciding that Gandy has different programmatic needs than

  an offender without a history of sexually deviant behavior. The

  district court properly concluded that Gandy’s equal protection

  claim was futile.

            D. First Amendment Claim Based on Retaliation

¶ 45   Gandy contends that defendants unlawfully retaliated against

  him for his continued filing of legal actions. Specifically, he argues

  his transfer from the Colorado State Penitentiary (CSP) to the

  Colorado Territorial Correctional Facility (CTCF) was in retaliation

  for his constitutionally protected activity.

¶ 46   A viable claim of retaliation in violation of the First

  Amendment must plausibly allege three elements: (1) the plaintiff

  engaged in constitutionally protected activity; (2) the defendant’s

  actions caused the plaintiff to suffer an injury that would chill a

  person of ordinary firmness from continuing to engage in that

  activity; and (3) the adverse actions were substantially motivated by




                                     24
  the plaintiff’s exercise of constitutionally protected activity. Shero v.

  City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

¶ 47   Defendants do not contest that Gandy satisfied the first

  element. So, we turn to the others.

   1. An Injury that Would Chill a Person of Ordinary Firmness from
                 Continuing to Engage in Protected Activity?

¶ 48   The question of a chilling effect on a person of ordinary

  firmness is an objective inquiry that a court may decide as a matter

  of law. Id.

¶ 49   Gandy maintains that the move to the CTCF would have such

  a chilling effect because it is a “less desirable facility” than the CSP.

  Taking his allegations as true, the transfer to the CTCF resulted in

  his losing some privileges and economic opportunities. At the CSP,

  Gandy crocheted items that he sold to staff members or donated to

  charity. Because the CTCF does not offer “a program where an

  offender can legitimately sell hobby products to staff members,” he

  “had to send out multiple skeins of yarn intended to be used in

  future projects, as well as various unfinished projects,” resulting in

  a loss of over $100. In addition, Gandy, age sixty-three, is now

  assigned to the top bunk of a two-man cell on a third floor without



                                     25
  elevator access. He has “slipped twice attempting to descend from

  the top bunk.”

¶ 50   “[L]awful incarceration brings about the necessary withdrawal

  or limitation of many privileges and rights, a retraction justified by

  the considerations underlying our penal system.” Green v. Nadeau,

  70 P.3d 574, 577 (Colo. App. 2003) (citation omitted). Thus, “[t]he

  supervision and management of the internal procedures of

  correctional institutions are within the discretion of institutional

  officials and not subject to judicial scrutiny absent exceptional

  circumstances.” Id.; see also Peterson v. Shanks, 149 F.3d 1140,

  1144 (10th Cir. 1998) (“[I]t is not the role of the federal judiciary to

  scrutinize and interfere with the daily operations of a state prison,

  and our retaliation jurisprudence does not change this role.”).

¶ 51   Generally, limiting an inmate’s privileges is not deemed a

  sufficiently serious consequence to chill a person of ordinary

  firmness from continuing to engage in protected conduct. For

  instance, in Rocha v. Zavaras, 443 F. App’x 316, 317 (10th Cir.

  2011), an inmate alleged that, in retaliation for complaints, he was

  placed on “restricted privileges” status that limited his access to

  recreational activities, caused him to be assigned to segregated


                                     26
  housing, delayed his calls to the cafeteria, restricted his canteen

  purchases, prevented him from contacting other inmates, and

  required him to wear distinct identifying clothing. Id. Then, “due to

  the prohibition on communication, he was injured during a work

  project, requiring eight stitches and additional bandages.” Id. Yet,

  the court ruled that he had “failed to allege facts necessary to

  support the element that any defendant’s actions ‘would chill a

  person of ordinary firmness from continuing to’ file grievances or

  exercise a constitutional right.” Id. at 319 (citation omitted).

¶ 52   Similarly, verbal harassment and name calling, while

  unprofessional and unpleasant, do not constitute adverse action

  sufficient to support a retaliation claim. See Requena v. Roberts,

  893 F.3d 1195, 1211 (10th Cir. 2018).

¶ 53   On the other hand, “common sense leads to the conclusion

  that being taken out of the general population and placed in

  twenty-three-hour-per-day confinement in retaliation” for

  constitutionally protected activity “would deter a reasonable inmate

  from exercising that First Amendment right in the future.” Montoya

  v. Bd. of Cty. Comm’rs, 506 F. Supp. 2d 434, 448 (D. Colo. 2007);

  see also Allen v. Avance, 491 F. App’x 1, 6 (10th Cir. 2012) (“The


                                     27
  prospect of punishment severe enough to satisfy the Eighth

  Amendment is sufficient to ‘chill a person of ordinary firmness’ from

  exercising his constitutional rights.”).

¶ 54     Considering the circumstances, we conclude that Gandy’s

  allegations — that he lost some privileges and income due to his

  transfer and must sleep on the top bunk in a third-floor cell — do

  not assert adverse action sufficient to support a retaliation claim.

¶ 55     Even assuming, however, that his transfer to the CTCF was an

  act that would chill a person of ordinary firmness from continuing

  to petition the courts for relief, we conclude that he failed to satisfy

  the third element of a retaliation claim. We turn to that issue next.

       2. Was The Transfer Substantially Motivated as a Response to
            Gandy’s Exercise of Constitutionally Protected Conduct?

¶ 56     An inmate “is not inoculated from the normal conditions of

  confinement experienced by convicted felons serving time in prison

  merely because he has engaged in protected activity.” Peterson, 149

  F.3d at 1144. Therefore, the inmate “must prove that ‘but for’ the

  retaliatory motive, the incidents to which he refers . . . would not

  have taken place.” Id. (citation omitted).




                                     28
¶ 57   Gandy contends that the timing of his transfer reveals

  retaliation. He asserts that the CDOC transferred him about two

  months after the Gandy IV division ruled in his favor in part. But,

  while Gandy alleges that the transfer was retaliatory, he also says

  that the CDOC claimed to transfer him “for programming purposes”

  (i.e., to allow him to participate in a treatment program). He claims

  that this stated reason for his transfer was not enough to justify the

  move because CDOC officials “admit that he was not eligible for the

  programming he was ostensibly being transferred for.”

¶ 58   As discussed, however, Gandy was due to become eligible for

  the treatment program shortly after the transfer. And it makes

  sense that prison officials would transfer him ahead of his eligibility

  date so that he could begin the program as soon as possible when

  he became eligible. Given this treatment-related reason for his

  transfer, Gandy did not plausibly allege that, but for the alleged

  retaliatory motive, he would not have been relocated to the CTCF. 5



  5 Indeed, this treatment-related reason for the relocation is more
  consistent with the timing of the transfer than any alleged
  retaliatory motive. Although Gandy has filed many legal actions
  against the CDOC over several years, he was not transferred until
  shortly before he became eligible for the treatment program.

                                    29
¶ 59   To sum up, we conclude that the district court correctly

  decided that Gandy’s proposed amendment adding a First

  Amendment retaliation claim was futile.

                                V. Conclusion

¶ 60   The order is affirmed.

       JUDGE DUNN and JUDGE BERGER concur.




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