United States District Court, D. Kansas
No. 5:12-CV-03109-SAC) (D. Kan.)
KELLY, PHILLIPS, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT [*]
GREGORY A. PHILLIPS CIRCUIT JUDGE.
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 Fed.Appx. 893,
898 (10th Cir. 2016).
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
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 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.
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.
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 events might create a new claim
(although we express no opinion on that matter), but they do
not revive the instant suit.
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.
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 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
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 Fed.Appx. 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