                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                  June 11, 2013

                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
JAMES K. CONKLETON,

             Plaintiff-Appellant,
v.                                                         No. 11-1535
                                              (D.C. No. 1:08-CV-02612-WYD-MEH)
ARISTEDES W. ZAVARAS, in his                                (D. Colo.)
official capacity as Executive Director of
the Colorado Department of Corrections
(CDOC); JOE STOMMEL, in his official
capacity as the Program Administrator of
the Sex Offender Treatment and
Monitoring Program (SOTMP) for the
CDOC; JOHN MCGILL, in his
individual and official capacities as
Treatment Provider for the SOTMP;
BONNIE CANTU, in her individual and
official capacities as Treatment Provider
for the SOTMP; JAMES LANDER, in
his individual and official capacities as
Treatment Provider for the SOTMP; ED
MURO, in his individual and official
capacities as a Correctional Officer I for
the CDOC; RICHARD DEGROOT, in
his individual and official capacities as a
Case Manager for the CDOC; CATHIE
HOST, in her official capacity as
Manager for the Office of Correctional
Legal Services for the CDOC; THOMAS
MISEL, in his individual and official
capacities as Case Manager Supervisor
for the CDOC; AL ESTEP, in his official
capacity as the Warden of the CDOC’s
Fremont Correctional Facility;
RICHARD LIND, in his individual and
official capacities as a Correctional
Officer V,

             Defendants-Appellees.
                            ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


      James K. Conkleton, a Colorado state prisoner proceeding pro se,1 appeals

from the district court’s order denying his motion to supplement his complaint. The

defendants, Colorado corrections officials, move to dismiss the appeal as moot.

Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the

appeal.

                                 I. BACKGROUND

      Mr. Conkleton is serving a ten-year-to-life prison sentence under Colorado’s

Sex Offender Lifetime Supervision Act (SOLSA), Colo. Rev. Stat. §§ 18-1.3-1001 to

1012. Under SOLSA, he is required to participate in the two-phase Sex Offender

Treatment and Monitoring Program (SOTMP). See id. § 18-1.3-1004(3) (requiring



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
      1
       Because Mr. Conkleton is proceeding pro se, we construe his filings liberally.
See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).


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treatment); Admin. Reg. 700-19 (setting out scope and limits of sex offender

treatment services).

      Mr. Conkleton began Phase I treatment, but was terminated after having six

unexcused absences from treatment sessions. He filed a complaint under 42 U.S.C.

§ 1983 asserting that the denial of re-entry into Phase I treatment violated his due

process rights.2 He requested damages, an injunction ordering immediate placement

into Phase I, and a declaration that SOLSA and the regulation are unconstitutional as

applied to him.

      The defendants moved to dismiss. The magistrate judge recommended

dismissal of the damages part of the claim only. About two months later, the

defendants moved to dismiss the declaratory and injunctive relief requests as moot

because Mr. Conkleton had re-entered Phase I treatment. The district court granted

the motion and also adopted the magistrate judge’s recommendation to dismiss the

damages request, thereby disposing of the § 1983 due process claim.

      Mr. Conkleton next moved for leave to supplement his complaint with a new

due process claim challenging the denial of his entry into Phase II treatment. He had

completed Phase I treatment and was on a waiting list for Phase II, but he was not

eligible for Phase II treatment until February 2012 because he was on close custody

disciplinary status for assaulting a prison staff member in 2005 and because his


      2
       Mr. Conkleton’s other claims in his complaint are not relevant to this
proceeding.


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minimum sentence was greater than six years. Mr. Conkleton sought an injunction

ordering his placement in Phase II and a declaration that SOLSA creates a liberty

interest in treatment regardless of classification.

       The district court denied the motion to supplement. It found that the new

claim was not the same as Mr. Conkleton’s original claim. The court also determined

that amending the complaint would be futile because it failed to state a claim under

Fed. R. Civ. P. 12(b)(6).

       Mr. Conkleton appeals the denial of his motion to supplement his complaint.

The defendants move to dismiss this appeal as moot.

                                   II. DISCUSSION

       The defendants contend that because Mr. Conkleton was admitted into Phase II

in April 2012, he no longer has a redressable injury. They further contend that

Mr. Conkleton cannot show an expectation that he will again be placed on a waiting

list for participation in Phase II and that he would receive due process — notice and a

hearing — before termination from Phase II. Mr. Conkleton counters that the appeal

is not moot because the voluntary cessation exception to the mootness doctrine

applies and because he sought a declaratory judgment with respect to the underlying

treatment policies.

A. Mootness

       “Article III of the United States Constitution limits the jurisdiction of federal

courts to the adjudication of ‘Cases’ or “Controversies.’” Jordan v. Sosa, 654 F.3d


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1012, 1019 (10th Cir. 2011) (quoting U.S. Const. art. III, § 2, cl. 1). This

case-or-controversy limitation requires that parties continue to have a personal stake

in the outcome of a lawsuit during all stages of litigation, including appellate review.

See United States v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011); Spencer v. Kemna,

523 U.S. 1, 7 (1998).

      At the outset of litigation, a plaintiff must demonstrate standing under Article

III by showing “(1) an injury in fact; (2) a causal connection between the injury and

the challenged action; and (3) a likelihood that a favorable decision will redress the

injury.” Jordan, 654 F.3d at 1019. Even if these elements are satisfied, a case or

controversy may become moot during the course of litigation, requiring dismissal.

Mootness may occur if, “due to intervening events, [the plaintiff] loses one of the

elements of standing during litigation.” WildEarth Guardians v. Pub. Serv. Co. of

Colo., 690 F.3d 1174, 1182 (10th Cir. 2012). For example, if a federal court can no

longer redress a plaintiff’s alleged injury with a favorable judicial decision—the third

element of standing—the case is moot. See Rhodes v. Judiscak, 676 F.3d 931, 933

10th Cir.), cert. denied, 133 S. Ct. 29 (2012); see also Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010) (“Declaratory

judgment actions must be sustainable under the same mootness criteria that apply to

any other lawsuit.”). Defendants bear the burden to prove mootness. See WildEarth

Guardians, 690 F.3d at 1183.




                                          -5-
B. Voluntary Cessation Exception

      Mr. Conkleton correctly states that “[o]ne exception to a claim of mootness is

[defendants’] voluntary cessation of an alleged illegal practice which [they are] free

to resume at any time.” Rio Grande Silvery Minnow, 601 F.3d at 1115 (internal

quotation marks omitted).

              Voluntary actions may . . . moot litigation if two conditions are
      satisfied: (1) it can be said with assurance that there is no reasonable
      expectation that the alleged violation will recur, and (2) interim relief or
      events have completely and irrevocably eradicated the effects of the
      alleged violation. Voluntary cessation of offensive conduct will only
      moot litigation if it is clear that the defendant has not changed course
      simply to deprive the court of jurisdiction.

Id. (brackets, citations, and internal quotation marks omitted). “Courts recognize that

defendants should not be able to evade judicial review . . . by temporarily altering

questionable behavior.” WildEarth Guardians, 690 F.3d at 1183 (internal quotation

marks omitted). “Thus, a defendant claiming that . . . voluntary compliance moots a

case bears the formidable burden of showing that it is absolutely clear the allegedly

wrongful behavior could not reasonably be expected to recur.” Id. (internal quotation

marks omitted). This burden “frequently has not prevented government officials

from discontinuing challenged practices and mooting a case.” Rio Grande Silvery

Minnow, 601 F.3d at 1116.

      We assume, without deciding, that the defendants’ placement of

Mr. Conkleton in Phase II treatment amounted to a voluntary cessation of the alleged

denial of treatment. But the defendants have shown that the voluntary cessation


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exception does not apply here because “there is no reasonable expectation that the

alleged violation will recur.” Id. at 1117 (internal quotation marks omitted).

Mr. Conkleton’s assertion that he could be removed from Phase II is at most

speculative. See id. Any future termination depends upon his own actions and

misbehavior. Indeed, defendants are not free to terminate Mr. Conkleton from Phase

II upon their whim. As they point out, Mr. Conkleton is entitled to due process

protections before he may be terminated from Phase II. See Admin. Reg. 700-32.

Mr. Conkleton does not counter the defendants’ argument with a showing that the

defendants temporarily placed him in Phase II or that they plan to remove him from

Phase II. See WildEarth Guardians, 690 F.3d at 1183.

C. Declaratory Judgment Request

      Mr. Conkleton further asserts that his request for declaratory relief regarding

the treatment policies is sufficient to keep the controversy alive because his

participation in Phase II occurred due to a change in his custody status based solely

on the defendants’ policies. Thus, he maintains that it was not his own acts but

voluntary acts of the defendants in changing his custody level that resulted in his

participation in Phase II. These arguments are not persuasive for much the same

reasons his voluntary cessation exception argument fails.

      “Declaratory judgment actions must be sustainable under the same mootness

criteria that apply to any other lawsuit.” Rio Grande Silvery Minnow, 601 F.3d at

1109. For this court to exercise jurisdiction, the request for declaratory relief must


                                          -7-
settle a dispute affecting the defendants’ behavior toward the plaintiff. Unified Sch.

Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1147 (10th Cir. 2007).

The plaintiff must show “a good chance” that the defendants will injure him in the

same way in the future. Id. And he “must be seeking more than a retrospective

opinion that he was wrongly harmed by the defendant.” Jordan, 654 F.3d at 1025.

      Mr. Conkleton’s own actions caused his close custody classification. It is

speculative whether the defendants will place him in close custody again or that their

custody policies will apply to him again in the future. Should that situation occur,

Mr. Conkleton would have the opportunity to challenge the policies at that time.

Thus, a declaratory judgment would not settle a dispute affecting the defendants’

behavior. Because there is “no substantial controversy of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment,” we cannot “grant any

effective relief, making the appeal before us moot.” Chihuahuan Grasslands

Alliance v. Kempthorne, 545 F.3d 884, 893 (10th Cir. 2008).

      In this case, “interim . . . events have completely and irrevocably eradicated

the effects of the alleged violation.” Rio Grande Silvery Minnow, 601 F.3d at 1115

(internal quotation marks omitted). Mr. Conkleton is participating in Phase II

treatment. His placement in Phase II has eradicated the effects of his temporary

removal from the sex offender treatment program.

                                    *      *      *




                                         -8-
      The record fails to indicate that the defendants placed Mr. Conkleton into

Phase II treatment to deprive this court of jurisdiction. Accordingly, we conclude

that the defendants have met their burden of proving this appeal is moot. We have no

jurisdiction over this appeal.

                                 III. CONCLUSION

      We grant the defendants’ motion to dismiss and dismiss this appeal as moot.

We remand to the district court for further proceedings consistent with this order and

judgment.

                                               ENTERED FOR THE COURT,



                                               Scott M. Matheson, Jr.
                                               Circuit Judge




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