Robertson v. Biby
17-3068
| 10th Cir. | Dec 15, 2017Background
- Joshua Robertson, a Kansas prisoner and Messianic Jew in long-term segregation, sued under RLUIPA seeking to possess a my-iBible (an MP3 player with the Bible read aloud) because segregation prevented him from hearing the Bible read aloud.
- The district court dismissed for failure to show a substantial burden; this court reversed and remanded in Robertson v. Biby, 647 F. App’x 893 (10th Cir. 2016).
- After remand, prison officials permitted Robertson to possess the my-iBible and accessories on conditions; the district court granted summary judgment for defendants as moot and denied secretarial fee relief to Robertson.
- During the appeal, prison officials seized Robertson’s earbuds for alleged misuse (listening to an AM/FM mini-radio outside his cell); Robertson alerted the court but did not dispute the underlying facts of misuse.
- The Tenth Circuit considered constitutional and prudential mootness, whether subsequent events revived the case or created a new claim, and whether a pro se litigant can recover secretarial costs under § 1988.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of original claim for my-iBible | Robertson argued relief was still needed because earbuds were later seized and third-party replacements are barred by prison policy | Defendants argued they already provided the my-iBible and promised third-party replacements, so original claim was satisfied and thus moot | Court: Claim was moot; subsequent seizures do not revive the original suit and could give rise to a new claim |
| Prudential mootness / voluntary compliance exception | Robertson contended subsequent events (seizure) render mootness inappropriate | Defendants pointed to their voluntary compliance and promise to allow replacements, removing a live controversy | Court: Prudential mootness applies; defendants’ actions left no meaningful relief for courts to add |
| Scope of requested relief (TV/radio vs. my-iBible) | Robertson later suggested TV or radio sought too; originally insisted my-iBible was essential and would moot suit if provided | Defendants noted Robertson repeatedly stated the my-iBible alone would satisfy his request | Court: Robertson cannot expand claims after receiving the my-iBible; original suit moot as to his focused request |
| Award of secretarial fees to pro se litigant under § 1988 | Robertson sought $13,600 for secretarial work done by his mother as part of litigation costs | Defendants argued pro se litigants cannot recover attorney’s fees or attendant secretarial costs under precedent | Court: Denied; pro se litigants are not eligible for § 1988 fee awards, so secretarial costs are not recoverable |
Key Cases Cited
- Ghailani v. Sessions, 859 F.3d 1295 (10th Cir. 2017) (mootness reviewed de novo)
- Front Range Equine Rescue v. Vilsack, 782 F.3d 565 (10th Cir. 2015) (defining when relief is no longer needed for mootness)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (subsequent events after mootness in district court do not revive the case)
- Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d 1208 (10th Cir. 2012) (prudential mootness and value left for courts to add when defendant voluntarily provides relief)
- ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735 (10th Cir. 2011) (standards for reviewing fee-denial rulings)
- Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274 (U.S. Supreme Court 1989) (§ 1988 fee awards may include secretarial and support staff work)
- Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243 (10th Cir. 1998) (attorneys and legal assistants’ fees treated similarly under § 1988)
- Kay v. Ehrler, 499 U.S. 432 (U.S. Supreme Court 1991) (pro se litigants are not entitled to attorney’s fee awards under § 1988)
- Turman v. Tuttle, 711 F.2d 148 (10th Cir. 1983) (per curiam) (pro se litigant ineligible for fee awards)