* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 22 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD RAY BEIERLE, Plaintiff - Appellant, and KEVIN CHARLES GWINN, Plaintiff,

v. COLORADO DEPARTMENT OF CORRECTIONS; JOE ORTIZ, Director of CDOC; TONY REED, Warden of BVCF, Defendants - Appellees. No. 03-1174 (No. 02-M-412) (D. Colorado)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges.- 2 -

Donald Beierle, pro se, appeals the dismissal of hi s 42 U.S.C. § 1983 civil rights complaint challenging the conditions of his prison confinement at Buena Vista Correctional Facility (“BVCF”). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part, vacate in part, a nd remand for further proceedings. On February 28, 2002, prisoners Donald Beierle and Kevin Gwinn filed a complaint naming as defendants the Colorado Departm ent of Corrections (“CDOC”), the Director of CDOC, Brian Burnett, and the BVCF warden, Tony Reed. The complaint was signed by Beierle and Gwin n. Beierle also submitted a motion for certification as a class. In addition, the names, addresses, and signatures of fifty-four parties were attached decl aring that “they are Plaintiff(s), in the above actions or shall file in concert pursu ant to a class action.” (R. Compl. at 11.) Beierle and Gwinn asserted three separate theories for injunctive relief. First, they alleged that CDOC officials violated th e Equal Protection Clause by treating inmates at BVCF differently than inmates i ncarcerated at other Level III secured CDOC facilities, such as requiring signific antly more lock-down time and providing less-equipped law libraries in comparisonto other facilities. Second, they alleged that CDOC officials violated their Fir st and Fourth Amendment rights, and rights of access to counsel and the cou rts, by impermissibly opening- 3 -

incoming legal mail and “go[ing] through” legal mai l in their prison cells during “shakedown” searches without inmates present. (R. Compl. at 20.) Third, they alleged that health and sanitary conditions at BVCF constitute cruel and unusual punishment in violation of the Eighth Amendment. S pecifically, they complained of exposure to asbestos and unsafe asbestos removal practices, an abundance of mice and mice feces, roaches and vermin in the kitc hen, noise and feces from migrating geese, lack of a sprinkler system, overcr owding, and sewage that backs up into water supplies in the kitchen, showers, andlaundry. On June 26, 2002, Beierle and Gwinn filed a motion to amend the complaint; the amended complaint sought to add addi tional defendants, numerous additional complaints, and make changes to their or iginal claims. They also submitted a second amended complaint, which the dis trict court received but did not file on August 22, 2002. On August 28, 2002, Beierle filed an affidavit in support of change of residency stating that he had been transferred from the BVCF to the Crowley County Correctional Facility onAugust 14, 2002. By an order filed on May 27, 2003, the district cou rt denied Beierle’s motion to certify a class action, determined that i nmates other than Beierle and Gwinn that sought to be listed as plaintiffs did no t meet the requirements for joinder, and dismissed plaintiff Gwinn for failure to exhaust administrative remedies. The district court also dismissed Beierl e’s substantive claims for- 4 -

injunctive relief for failure to state a claim unde r Fed. R. Civ. P. 12(b)(6) and denied the motion to amend the complaint. On appea l, Beierle argues, inter alia, that the district court erred in: (1) denying his request to file a class action; (2) holding that futility is not an exception to the re quirement to exhaust administrative remedies; (3) denying his request to amend the complaint; and (4) finding that he did not state a claim for violation s of his rights to equal protection, access to courts and counsel, and freed om from cruel and unusual punishment. Finally, Beierle requests that we appo int appellate counsel. We review the district court's finding that Beierle is not an adequate class representative for abuse of discretion, see Pilots Against Illegal Dues v. Air Line Pilots Ass’n , 938 F.2d 1123, 1134 (10th Cir. 1991), and affirm. A class representative must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In Fymbo v. State Farm Fire and Cas. Co. , 213 F.3d 1320, 1321 (10th Cir. 2000), we concluded that a “litigan t may bring his own claims to federal court without counsel, but not the claims o f others.” Id. at 1321 (citation omitted); see also 7A Wright, et al., Federal Practice and Procedure: Civil 2d § 1769.1 (2d ed. 1986).
As to the dismissal of Gwinn for failure to exhaustadministrative remedies, although we have held that futility is not an excep tion to the requirement that prisoners must exhaust administrative remedies prio r to seeking judicial review,1 In his second amended complaint Beierle sought a damage award, but does

not reassert this request on appeal. - 5 - see Yousef v. Reno , 254 F.3d 1214, 1221 (10th Cir. 2001), we need notdecide whether the district court acted properly because G winn has since been released from prison and is no longer taking part in this ap peal. Because we conclude that the proposed amended compl aint would not have cured the deficiencies in the original complaint an d sufficed to state a claim for violations of equal protection, the Eighth Amendmen t, or access to counsel and the courts, we determine that the district court ac ted within its discretion in denying Beierle’s motion to amend. See Fomon v. Davis , 371 U.S. 178, 182 (1962) (“futility of amendment” is adequate to refu se leave to amend). Turning to the district court’s dismissal of Beierl e’s substantive claims for prospective injunctive relief pursuant to Fed. R. C iv. P 12(b)(6), we conclude that the issues are moot because Beierle’s individual cl aims for injunctive relief uniformly pertain to alleged constitutional violati ons at a single prison compound where Beierle is no longer incarcerated. 1 We have held that “Article III's requirement that federal courts adjudicate only cas es and controversies necessitates that courts decline to exercise jurisd iction where the award of any requested relief would be moot — i.e. where the co ntroversy is no longer live and ongoing.” Cox v. Phelps Dodge Corp. , 43 F.3d 1345, 1348 (10th Cir. 1994).- 6 -

A claim will be “deemed moot unless a proper judici al resolution settles some dispute which affects the behavior of the defendanttoward the plaintiff.” McAlpine v. Thompson , 187 F.3d 1213, 1216 (10th Cir. 1999) (quotations omitted). An award of injunctive relief to remedy alleged inadequate conditions and constitutional violations at BVCF would have no effect on defendants’ behavior towards Beierle. Moreover, Beierle has no t alleged facts indicating that he will be transferred back to BVCF at some date in the future. See id. at 1217 (concluding that the hypothetical possibility that an inmate on supervised release will violate the terms of his parole and be returne d to the same prison cannot “save an otherwise moot claim for prospective injun ctive relief relating to prison conditions”); see also Magee v. Waters , 810 F.2d 451, 452 (4th Cir. 1987) (holding that a prisoner’s transfer moots his reque st for injunctive relief for denial of access to courts in the facility from which he w as transferred); Beyah v. Coughlin , 789 F.2d 986, 988 (2d Cir. 1986) (holding similar ly in the context of alleged deprivations of constitutional rights); Martin v. Sargent , 780 F.2d 1334, 1337 (8th Cir. 1985) (holding similarly in the cont ext of inadequate conditions of confinement); McKinnon v. Talladega County , 745 F.2d 1360, 1363 (11th Cir. 1984) (concluding that a prisoner’s argument that “ there is no assurance that he will not be returned to the [first] jail” is not a defense to mootness). Finally, we note that the record does not reveal any suggestionthat Beierle’s transfer was- 7 -

made for the purpose of evading our jurisdiction. See McKinnon , 745 F.2d at
1363. For these reasons, we AFFIRM the district court’s order denying class certification and denying the motion to amend. We VACATE the district court’s order dismissing Beierle’s equal protection, Eighth Amendment, and access-tocounsel and courts claims and REMAND with instructions that the district court
DISMISS these claims without prejudice as moot. We GRANT Beierle’s motion to proceed without prepayment of the filing fee. However, Beierle remains liable for the amount of the appellate filing fee and is o bligated to continue making partial payments until the entire fee has been paid . Beierle’s request for counsel is DENIED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge