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 

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.
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

¶ 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 
2

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 
3

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.
4

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 
5

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.
6

¶ 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:
7

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 
8

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 
9

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 postremand 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 

 

2 In 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.
10

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 

 

3 His motion actually stated January “2017,” but he clearly meant 

January “2018” given that he filed the motion in December 2017.
11

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 
12

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 
13

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, 
14

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 
15

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. 
16

¶ 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 
17

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 
18

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 
19

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.
20

¶ 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.
21

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 

 

4 In 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).
22

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 
23

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 
24

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
25

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 
26

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 
27

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 
28

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).
29

¶ 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.
30

¶ 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.