                                                                                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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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


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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

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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).
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                                   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




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