SUMMARY August 1, 2019
2019COA11 8 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 affi rms 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 discreti on ; 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 2019COA11 8
Court of Appeals No. 18CA0865 El Paso County District Court No. 1 6CV45 Honorable Eric Bentley , Judge
Robert D. Gandy, Plaintiff

- Appell ant ,

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

- Appell ees .

ORDER AF FIRMED
Division VI I 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

- Appellees1 ¶ 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 ca se . His complaint stems from the de nial of his application to serve his prison sentence in Canada, his birth place . 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 Dir ector , the decision whether to grant the application lies with in 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 a ppeals 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 ’ t2 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 h is applications. ¶ 3 In this case , Gandy filed a transfer application in September
20 1 5 . After it was denied , he filed a complaint in the district court against CDOC Executive Director and CDOC Director of Prisons (defendants)

. A mong other claims, Gandy sought mandamus relief directing defendants to process his prisoner

- trans fer application according to CDOC regulation AR 550

- 0 5

. T he court granted defendant s ’ motion to dismiss , and Gandy appealed. ¶ 4 In Gandy IV , a division of t his court rejected most of Gandy’s contentions but held that he had sufficiently stated a mandamus cla im

. The division concluded that the CDOC’s regulat i on required the Director of Prisons to forward Gandy’s transfer application to3 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 Dir ector. Id

. at ¶ 43. ¶ 5 On remand, the CDOC amended AR 550

- 05 . Applying the amended regulation, the Executi ve Direc tor considered and denied Gandy’s transfer application. 1 Defendants filed th is 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. T he Executive Director then i ssued the following memo to Gandy : It is the policy of the Colorado Department of Corrections to return convicted foreign na tional 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 b ehaviors 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 ava ilable 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 programm atic 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

. D efendants opposed his motion, argu ing that his suggested

am endments could not withstand a motion to dismiss and were5 therefore futile under A merican C ivil L iberties U nion of Colo rado 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 tran s fer application , his amended complaint alleged that defendants had unlawfully retaliated against him by relocating him to a less desirable facility. D efendants again
argu ed that the proposed claims were futile on the merits

. ¶ 7 T he 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 propos ed amended complaint , the court denied it . The court conclud ed 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 ne w 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 clo sed the case, and Gandy appealed.6 ¶ 8 Because Gandy appears pro se in this court , w e 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.
I I

. 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 pleadi ng 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 righ t 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, i f 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) (cit ations omitted) ; s ee 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 fr om 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)] .”) ( c itations 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 conduc ted after an appellate court ’ s order8 of remand .”). More precisely, the district court retained discretion to grant Gandy leave to amend the pleadings following remand from this court unless th e amendment would contravene a mandate that expressly or by nec essary implication preclude d 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
pe rmit “a supplemental pleading set ting 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 sub stantially 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 t he circumstances, balancing the policy favoring amendment against9 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).
I II

. 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

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 sup plemental briefs.10 fashion

. . . . ” § 13

- 17 .5

- 102.3(1), C.R.S. 2018. “ F ailure 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 exhaus tion 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 a n 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 f actual allegations as true , we conclude that he s tated 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 al so Town of Alma v. AZCO Constr., Inc. , 10 P.3d 1256, 1259 (Colo. 2000) (w hen considering a motion to dismiss, a court accept s as true the plaintiff’s allegations of material historical fact )

. This conclusion is especially apt given that defendants, in their opposition to his amended complain t , did not deny that Gandy had exhausted administrative remedies as to his new claims

. Likewise, in their answer brief in this court, defendants d o not deny that he did so

. ¶ 19 I n 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 f iling 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 re sponse 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, 52 5 (2002). But, a ccording to Gandy’s allegations in his amended12 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 act s 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 th e new claims in his amended complaint

. Cf. Graham v. Maketa , 227 P.3d 516, 519 (Colo. App. 2010) ( recognizing that inmat e may have exhausted administrative remedies as to one claim but not others)

. As explained, he alleged enough to show exhaustion at th is 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.
I V

. 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 amendments13 were futile on the merits

. An amendment is futile if it “merely restates the same facts as the original complaint in different terms,

r easserts 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 accept s 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 ame nd his complaint to a ssert five claims: (1) a request for mandamus relief under C.R.C.P. 106(a); (2) an Administrative Procedure Act violation; (3) an e qual p rotection violation; (4) a claim alleging that the CDOC Executive Director violated his fiduciary dut y ; and (5) a claim alleging that Gandy ’s transfer t o a less desirable prison violat ed 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.” Manda mus 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).
Fu r thermore, m andamus is not appropriate unless all alternative forms of relief have been exhausted. Id

. ¶ 25 Gandy asserts tha t, under the CDOC’s regulation, he is entitled to be transfer red 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 nati onal 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 privilege15 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

“ E ligibility C riteria for T ransfer C onsideration,” the regulation lists seven conditions as well as a catch

- all category: “ A n offender must meet any additional qualification criteria which treaty nations may require.” AR 550

- 05(IV)(C). ¶ 27 AR 550

- 05 thus entitle d Gandy to have his transfer application processed , reviewed , a nd decided by the E xecutive
D irector and to receive written notice if the application was denied.
Because th o se procedures were followed here, the CDOC fulfilled its obligatio ns under the regulation.16 ¶ 28 Still, Gandy contends that the denial of his applicat ion 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 D OC 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, h owever, 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 do es not impose a clear duty to grant a transfer re quest . In fact, it plain ly
state s that “ transfer is a privilege and not a right ” and the decision to approve or deny a transfer f a ll s within the “sole discretion” of the
G overnor or the E xecutive D irector. 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 C DOC has “broad discretion” over “the management of17 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.’” ( q uoting White v. People , 866 P.2d 1371, 1373 (Colo. 1994)) )

. ¶ 30 Finally , Gandy does not point to any language in either the
T reaty or Colorado’s implementing statute that requires the CDOC, or Colorado generally, to consent to his transfer. Therefore , the di strict 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 a lleged that the denial of his transfer application

was “ arbitrary and capricious,” and an abuse of disc re tion. Construing his allegations liberally, he asserted a claim u nder C.R.C.P. 106(a)(4)

. U nder 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
g overning law. Brooks v. Raemisch , 2016 COA 32, ¶ 32. Absent18 such a misinterpret ation, 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 statute s , and the T reaty itself , we disagree

. Under the T reaty, 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 Receivin g State.”); i d

. 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. § 410 2 ( 6 ) (2018) , the U nited 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 “th e governor may , on behalf of the state and subject to the terms of the treaty, authorize the19 executive director of the [CDOC] to consent to the transfer or exchange of offenders . . .

. ” See Gandy IV , ¶ ¶ 11

- 12. T hese authorities recognize that state prison official s 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
T reaty because neither requires an offender to be “p rogram 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 require s specialized sex offense

- specific treatment to reduce recidivism and enhance public safety. We have no basis to second

- guess th is 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 t his argument overlooks his
own interest in rehabilitation , which the CDOC officials must consider. Furthermore, given that Gandy could be released from prison as earl y as 2022, it was not unreasonable for the Executive Director to conclude that it is in the public interest to treat him before h e is transferred out of the CDOC’s custody

. ¶ 37 True, Gandy was not yet eligible for the treatment program at the time his applicat ion 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 cond ition

. ¶ 38 Accordingly, even assuming the truth of Gandy’s factual allegations, we cannot conclude that the Executive Director abuse d 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 outline s 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 comp ly 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 E xec utive
D irector 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 [ C DOC].” 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 ( E xecutive D irector has power to transfer inmates). S ection
17

- 1

- 111, C.R.S. 2018, states that the provisions of title 17
“r elating 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 ex emp tion 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, how ever, 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 pl ain 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 E xecutive D irector’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 E xecutive Director

. . . to23 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 appl ication on the basis that he has not yet completed a sex offen se
- 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 w ith 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 only24 similarly situated with defendants who commit the same or similar
acts [.] ” People v. Fritschler , 87 P.3d 186, 188 (Colo. App. 2003)

. Th erefore , the Equal Protection Clause did not prohibit the CDOC from decid ing that Gandy has different programmatic needs than

a n offender without a history of sexual ly deviant behavior. Th e district court properly concluded that Gandy’s e qual p rotection claim was futile.
D

. First Amendment Claim Based on R etaliation ¶ 45 Gandy contends that defendants unlawfully retaliated against
him for his continued filing of legal action s . 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 by25 the plaintiff’s exercise of constitutionally protected activity. Shero v. City of Grove , 510 F.3d 1196, 1203 (10th Cir. 2007). ¶ 47 D efendants do not contest that Gandy satisfied th e first element

. So, we turn to the others

. 1

. A n 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.
T aking his allegations as true, the transfer to the CTCF resulted in his los ing s ome privileges and economic opportunities. At the CSP, Gandy crochet ed items that he sold to staff members or donated to charity

. B ecause the CTCF d oes 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 f loor without26 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 underlyin g 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 subj ect 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, l imiting 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, i n 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 privilege s ” status that limited his access to
recreation al activities, caused him to be assigned to segregated27 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 chil l 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 conf inement in retaliation ” for constitutionally protected activity “w ould 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) (“ The28 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 a ssuming , however, that hi s 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 inm ate “ 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 timi ng of his transfer reveals retaliation. He asserts that the C DOC transferred him about two months after the Gandy IV division ruled in his favor in part

. But ,

w hile Gandy alleges that the transfer was retaliatory , he also says that the C DOC claimed to tr ansfer 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
programm ing 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 th is treatment

- related reason for his transfer, Gandy did not plausibly allege that , but for the alleged
reta liatory 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 aga inst 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.
J UDGE DUNN and JUDGE BERGER concur.