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McCubbin v. Weber County

United States District Court, D. Utah, Northern Division

August 4, 2017

LELAND KIM MCCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs,
v.
WEBER COUNTY, OGDEN CITY, CHRISTOPHER ALLRED, in his official capacity, and DOES 1-10 Defendants.

          MEMORANDUM DECISION & ORDER DENYING IN PART, GRANTING IN PART WEBER COUNTY'S SECOND MOTION FOR JUDGMENT ON THE PLEADINGS

          CLARK WADDOUPS UNITED STATES DISTRICT JUDGE.

         These consolidated actions challenge a now-voided “gang injunction” secured by Ogden City and Weber County targeting the Ogden Trece gang. Weber County and Weber County Attorney Christopher Allred (hereinafter Weber County, unless otherwise indicated) filed a Second Motion for Judgment on the Pleadings seeking dismissal of all claims brought against Weber County in this case on various legal theories. (Dkt. No. 60.) On May 24, 2017, the court heard oral argument on the Motion. (See Dkt. No. 74.) For the reasons discussed below, the court now DENIES the Motion in all respects, except as to the state tort claims. The court GRANTS the Motion dismissing Plaintiffs' Eighth and Ninth Claims for Relief.

         BACKGROUND

         For the purpose of resolving this Motion, the court must accept all well-pled, non-conclusory factual allegations and all reasonable inferences from the pleadings as true. See Park Univ. Enterprises, Inc. v. Am. Cas. Co. Of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006), abrogated on other grounds by Magnus, Inc. v. Diamond State Ins. Co., 545 F. App'x 750, 753 (10th Cir. 2013) (noting courts apply the same standard to motions for judgment on the pleadings as motions to dismiss, and “accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same”). Moreover, because the gang injunction was previously challenged in the Utah Supreme Court, see Weber Cty. v. Ogden Trece, 2013 UT 62, 321 P.3d 1067, this court will cite to the Utah Supreme Court's opinion where it recounts similar or identical facts.

         A. The Gang Injunction

         In August 2010, Weber County lodged a complaint for a permanent injunction against the Ogden Trece street gang. (Am. Compl. ¶ 20, Dkt. No. 50; Trece, 2013 UT 62, ¶ 7.) Weber County sought the injunction “under a public nuisance theory pursuant to section 76-10-806 of the Utah Code, which empowers a county attorney ‘to institute an action in the name of the county ... to abate a public nuisance.'” Trece, 2013 UT 62, ¶ 2 (quoting Utah Code Ann. § 76- 10-806).[1] The district court entered a temporary restraining order that same day. (Am. Compl. ¶ 23; Trece, 2013 UT 62, ¶ 7.)

         Weber County served the nuisance suit personally on five alleged Trece members, mailed process to twelve others, and attempted to serve the Trece itself by publication. (Am. Compl. ¶ 24; Trece, 2013 UT 62, ¶¶ 8-10.) Weber County did not serve either Mr. Lucero or Mr. McCubbin with the complaint, temporary restraining order, or any other motion in the nuisance suit. (Am. Compl. ¶ 26.) Following an evidentiary hearing on September 14 and 27, 2010, the state district court converted the temporary restraining order to a preliminary injunction. (Am. Compl. ¶¶ 28, 30; Trece, 2013 UT 62, ¶ 11.) Two Ogden police officers testified at the hearing about the criminal and nuisance activity of the Trece gang. (Trece, 2013 UT 62, ¶ 11; see Am. Compl. ¶ 21-22 (alleging cooperation among Weber County and Ogden City in pursuing the nuisance action).)

         Weber County then began serving the preliminary injunction on more than three hundred alleged members of the Trece. (Am. Compl. ¶ 63; Trece, 2013 UT 62, ¶ 12.) Though individuals served sought to intervene in the nuisance suit and challenge the injunction, the district court denied all motions to intervene, reasoning that service of the injunction satisfied due process because it placed those served on notice of the injunction. (Am. Compl. ¶¶ 65-67; Trece, 2013 UT 62, ¶ 13.)

         The injunction restricted anyone served from engaging in an array of activities within the “Safety Zone, ” a twenty-five square-mile area encompassing nearly all of Ogden City. (Am. Compl. ¶¶ 28, 30; Trece, 2013 UT 62, ¶¶ 3, 16-17.) First, the injunction prohibited association with any “known member” of the Trece in public, including “[d]riving, standing, sitting, walking, gathering, or appearing together with any known member of Ogden Trece anywhere in public view or anyplace accessible to the public.” (Am. Compl. ¶ 33 & Ex. 1 at 2; Trece, 2013 UT 62, ¶ 16.) The injunction did not, however, identify or otherwise define “known” Trece members, apparently leaving the determination of who was a “known member” to the discretion of law enforcement. (Am. Compl. ¶ 34; see Id. ¶ 49.)

         Next, the injunction prohibited intimidation of witnesses, victims, or complainants, including “[c]onfronting, intimidating, annoying, harassing, threatening, challenging, provoking, [or] assaulting any person known to be a witness to any activity of Ogden Trece, known to be a victim of any activity of Ogden Trece, or known to have complained about any activity of Ogden Trece.” (Am. Compl. ¶ 36 & Ex. 1 at 2-3; Trece, 2013 UT 62, ¶ 16.) The injunction also prohibited a served person from possessing or being in the presence of firearms and other weapons; creating graffiti or possessing tools that could be used to create graffiti; selling, possessing, using, or being in the presence of drugs or drug paraphernalia; consuming or being in the presence of alcohol consumption except at home or in licensed establishments; and trespassing. (Am. Compl. ¶¶ 37, 39 & Ex. 1 at 3-4; Trece, 2013 UT 62, ¶ 17.) The injunction did not require that the person being prohibited from possessing a firearm be a convicted felon or convicted of any crime that would abrogate his rights under the Second Amendment. (See Am. Compl., Ex. 1 at 3.)

         The injunction imposed a curfew between the hours of 11 p.m. and 5 a.m.--with exceptions for travel to and from work, and from any non-gang related entertainment event, school activity, or religious service, as well as for “legitimate emergenc[ies], ” including disasters, accidents, and situations that require “immediate action to prevent serious bodily injury or loss of life.” (Am. Compl. ¶ 38 & Ex. 1 at 4; Trece, 2013 UT 62, ¶ 17.) It further required served persons “to obey all laws.” (Am. Compl. ¶ 40 & Ex. 1 at 4; Trece, 2013 UT 62, ¶ 17.)

         The injunction contained an “opt-out” provision under which a served person could seek dismissal of, and thereby render unenforceable, the injunction against them by declaring that he or she is a former, non-active member of the Trece, and submitting proof of his or her lack of recent criminal history, lack of association with known active Trece members, lack of new gang-related tattoos, and gainful employment. (Am. Compl. ¶¶ 41 & Ex. 1 at 5-6; see Trece, 2013 UT 62, ¶ 18.) Notably, never having been a gang member was not a basis to opt out. Plaintiffs contend that such a procedure shifted the costs of “opting out” of possible criminal sanctions to those served, and forced served persons who were never members of the Trece gang to perjure themselves in attempting to opt out. (Am. Compl. ¶¶ 42-43.) The injunction also contained a “hardship exemption process” by which a served person could request exceptions to the curfew and association restrictions via a written application to the Weber County Attorney and, thereafter, by application to the district court. (Id. ¶ 44; Trece, 2013 UT 62, ¶ 19.) Remarkably, if a parson successfully opted out, the person remained subject to the prohibition on association with known active Trece gang members and getting arrested for “any crime . . . determined to be . . . gang-related, ” thus effectively extending the injunction's core prohibitions indefinitely. (Am. Compl., Ex. 1 at 7.)

         Finally, the injunction contained a “no third-party beneficiaries” provision, stating that a served person's eligibility to “opt-out” was not a defense to a civil or criminal case for violation of the injunction. (Am. Compl. ¶ 45 & Ex. 1 at 6.) Plaintiffs allege that this provision precluded them from using the fact that they were not members of the Trece as a defense if, and when, they were criminally charged with violating the preliminary injunction. (Id. ¶ 46.)

         Because the injunction did not require Weber County to establish in court that a person intended to be served was, in fact, a Trece member, Plaintiffs allege that Weber County engaged in a policy or practice of permitting its representatives and agents unfettered discretion as to which individuals they chose to serve with the preliminary injunction. (Id. ¶¶ 49-50, 55.) This policy resulted in Weber County serving persons it knew were not gang members, as well as disproportionately targeting Hispanics living in Ogden. (Id. ¶¶ 55-59.) Plaintiffs contend the complete discretion allowed ethnic prejudice and subjective criteria to play a part in identifying those to be served, and observe that Hispanics constituted the vast majority of those served. (Id. ¶¶ 61-62, 64.) Plaintiffs allege that Weber County and Ogden City law enforcement had actual knowledge that neither Mr. Lucero nor Mr. McCubbin was a member of the Trece when served with the preliminary injunction, and thus assert that impermissible ethnic prejudice, rather than Trece membership, informed the decision to serve them. (Id. ¶ 88.) Moreover, Weber County and Ogden City allegedly jointly maintain a non-public gang database that contains Plaintiffs' names and other names of individuals believed to be members, associates, or agents of criminal organizations, including the Trece. (Id. ¶¶ 51-53, 92, 149, 155.)

         On June 14, 2012, after another evidentiary hearing, [2] the district court entered a permanent injunction against the Trece that was substantially identical to the preliminary injunction. (Am. Compl. ¶¶ 69, 71; Trece, 2013 UT 62, ¶¶ 14-16.) Plaintiffs allege that Weber County and Ogden City continued to arrest individuals served with the preliminary injunction only, even after the district court had entered the permanent injunction. (Am. Compl. ¶ 72.)

         B. The Plaintiffs

         Mr. Lucero was served with the preliminary injunction in September or October 2010. (Id. ¶¶ 98, 105.) Mr. Lucero denied being a member of the Trece when served, and had denied being a member of the gang in previous interactions with law enforcement. (Id. ¶¶ 91, 93, 99.) Officers disbelieved Mr. Lucero because he had family members identified as Trece members, and because they believed a nickname his family used for him--“Fat Boy”--represented a gang moniker. (Id. ¶¶ 93-94, 100.) They also told Mr. Lucero that they were recording him in a gang database available to Ogden and Weber County law enforcement. (Id. ¶ 92.) Mr. Lucero alleges that ethnic prejudice explains, at least in part, the officers' refusal to believe his denials of gang membership. (Id. ¶ 101.) On October 10, 2012, Weber County charged Mr. Lucero with violating the injunction, along with other charges. (Id. ¶ 106.) The violation stemmed from allegations that Mr. Lucero was in public in Ogden City after 11 p.m. and in possession of drugs. (Id. ¶ 107.) On July 16, 2013, [3] Mr. Lucero was convicted of violating the preliminary injunction and another charge. (Id. ¶ 108.)

         In June 2011, Mr. McCubbin was served with the preliminary injunction while in the Utah State Prison. (Id. ¶ 119.) Mr. McCubbin does not deny having once been a member of the Trece. (Id. ¶ 111.) In April 2008, however, Mr. McCubbin decided to leave the gang and was subjected to a ritual physical assault that left him hospitalized. (Id. ¶¶ 112-13.) Members of the Ogden police investigated that assault, and Mr. McCubbin informed officers during that time that the assault resulted from his decision to leave the Trece. (Id. ¶¶ 114-15.) Mr. McCubbin had been placed in restrictive housing while serving his prison sentence in part because prison officials knew that he had left the Trece, which raised security concerns. (Id. ¶ 118.) Mr. McCubbin alleges that law enforcement's decision to serve him with the injunction while knowing he was no longer a Trece member is explained in part by ethnic prejudice. (Id. ¶ 122.) On August 31, 2011, Mr. McCubbin was released from prison and still subject to the injunction. (Id. ¶¶ 123-24.) On December 5 and 27, 2011, Ogden City and Weber County charged Mr. McCubbin with violating the injunction, based on allegations that he was in public after 11 p.m., along with other charges. (Id. ¶¶ 126-28, 130-31.) On January 4, 2012, Mr. McCubbin was convicted of violating the preliminary injunction and two other charges. (Id. ¶¶ 129, 132.) Later, on a motion to reduce his sentence for violating the injunction, the court suspended 60 days from his sentence. (Id. ¶ 133.) Moreover, in April 2012, Mr. McCubbin undertook proceedings to “opt-out” of the injunction and proved to the nuisance court that he was not a member of the Trece. (Id. ¶¶ 135-56.) The nuisance court dismissed the injunction against him without prejudice. (Id. ¶ 137.)

         C. The Utah Supreme Court's Decision & Post-Conviction Proceedings

         On October 18, 2013, the Utah Supreme Court voided the permanent injunction ab initio, holding that Weber County failed to properly serve the Trece. Trece, 2013 UT 62, ¶ 64. The Trece court did not reach any of the constitutional issues on appeal. See Id. ¶¶ 4-5, 64. The Supreme Court remitted its decision to the district court on November 6, 2013 and filed the remittal order the following day. (Am. Compl. ¶ 75.) Plaintiffs did not receive notice of the Supreme Court's decision because they were not parties to the nuisance suit, and Weber County did not attempt to inform Plaintiffs that the injunction was no longer effective. (Id. ¶¶ 76-78.) On September 19, 2014--nearly a year after the Supreme Court's decision--and upon Weber County's motion, the nuisance court dismissed the injunction. (Id. ¶ 81.)

         Mr. Lucero petitioned the state court to vacate his injunction-related conviction, but the court found his petition untimely and denied post-conviction relief. (Id. ¶¶ 109-10.) Mr. McCubbin's injunction-related convictions, however, were vacated by a state court on June 5, 2015. (Id. ¶¶ 133-40.)

         Weber County and Ogden City officials, including the Weber County Attorney, have publicly stated in various media interviews that they intend to remedy the service issues, refile a nuisance suit against the Trece, and obtain another injunction identical to the one voided. (Id. ¶¶ 82-84.)

         PROCEDURAL HISTORY

         Mr. McCubbin and Mr. Lucero filed separate civil rights cases seeking, among other relief, a declaration that the gang injunction obtained by Weber County and Ogden City violated their due process and First Amendment rights under the United States Constitution and the Utah state constitutional counterparts. (Dkt. No. 2.) The court consolidated their cases on March 24, 2016, finding substantially similar parties and questions of law in both. (Dkt. No. 30.) Ogden City filed motions to dismiss, and Weber County filed a motion for judgment on the pleadings. (See Dkt. Nos. 17, 31, 35.) Meanwhile, Plaintiffs sought leave to amend their complaints. (See Dkt. No. 38.) After a hearing, the court granted Plaintiffs leave to amend without prejudice to any dismissal arguments. (See Dkt. Nos. 48, 49.)[4]

         Plaintiffs' Amended Consolidated Complaint asserts six constitutional claims against all Defendants (Weber County/Attorney Allred, Ogden City, and Doe Defendants), pursuant to 42 U.S.C. § 1983 and the Utah Constitution:

1. Violation of procedural due process (First Claim for Relief);
2. Violation of substantive due process (Second Claim for Relief);
3. Violation of First Amendment right to free association (Third Claim for Relief);
4. Violation of First Amendment right to free expression (Fourth Claim for Relief);
5. Violation of Utah constitutional right to due process (Sixth Claim for Relief);
6. Violation of Utah constitutional right to free expression (Seventh Claim for Relief).

(Am. Compl. 19-24, Dkt. No. 50.) Plaintiffs also assert a conspiracy claim under 42 U.S.C. § 1985(3) (Fifth Claim for Relief) against all Defendants. (See Id. at 22-23.) Finally, Plaintiffs assert a state law wrongful injunction claim against Weber County (Eighth Claim for Relief) and an abuse of process claim against all Defendants (Ninth Claim for Relief). (Id. at 24-25.) And Plaintiffs seek a declaratory judgment against all Defendants (Tenth Claim for Relief) stating that “any attempt to serve them in the future with an injunction identical to the one issued by the district court in the nuisance suit would violate their civil rights.” (Id. at 25.)

         On December 14, 2016, Weber County filed a Second Motion for Judgment on the Pleadings.[5] (See Dkt. No. 60.) After a round of briefing, the court heard argument and took the Motion under advisement.

         LEGAL STANDARD

         Courts review motions for judgment on the pleadings under the same legal standard as motions to dismiss. See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223 (10th Cir. 2009). The court accepts all well-pled factual allegations in the complaint as true and considers them in the light most favorable to the plaintiff. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). Where a defendant has challenged the sufficiency of the claims, the court must determine whether the plaintiff has provided “enough facts to state a claim to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         “The motion for a judgment on the pleadings only has utility when all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court.” 5C Charles Alan Wright et al., Federal Practice & Procedure § 1367 (3d ed.). The Tenth Circuit has stated that “[j]udgment on the pleadings should not be granted ‘unless the moving party clearly establishes that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.'” See Park Univ., 442 F.3d at 1244 (quoting United States v. Any & all Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000)). In ruling on a motion for judgment on the pleadings, the court may consider the complaint, any material attached to the complaint or incorporated by reference, other pleadings, and matters central to a claim or defense. See Park Univ., 442 F.3d at 1244; 5C Federal Practice & Procedure § 1367. Additionally, the court may take judicial notice of state court documents. Denver Health & Hosp. Auth. v. Beverage Distrib. Co., LLC, 546 F. App'x 742, 747 n.3 (10th Cir. 2013) (unpublished).[6]

         ANALYSIS

         Accepting the pleadings as true and drawing all inferences in Plaintiffs' favor, the court finds Weber County's arguments as to immunities, justiciability, and failure to state a claim all fail at this stage of the proceedings. The court agrees, however, that the Utah Governmental Immunity Act (UGIA) bars Plaintiffs' Eighth and Ninth Claims for Relief (state law wrongful injunction and abuse of process). Thus, the court dismisses those two claims against Weber County.

         The court addresses each of Weber County's arguments in logical order, starting with threshold issues that implicate the court's jurisdiction.

         A. Justiciability Doctrines

         Weber County argues that Plaintiffs do not have standing in this case because the gang injunction has been voided, any future injunction is too speculative, and Weber County did not “directly cause” any injury because it did not serve or arrest the Plaintiffs. (See Mot. 6-7, Dkt. No. 60; Reply 2-3, Dkt No. 73.) Weber County also suggests that Plaintiffs waived their constitutional claims by pleading guilty and that Plaintiffs real dispute lies with the state court that entered the injunction. (See Mot. 7-9.) Although Weber County blends several legal challenges at this point, these arguments implicate issues of justiciability.

         Standing, mootness, and ripeness are related jurisdictional doctrines. “Standing concerns whether a plaintiff's action qualifies as a case or controversy when it is filed; mootness ensures it remains one at the time a court renders its decision.” Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016). Courts describe mootness as “standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. at 1164 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22 (1997)). Meanwhile, the ripeness doctrine “aims to prevent courts from entangling themselves in abstract disagreements by avoiding premature adjudication.” Buhman, 822 F.3d at 1164 n.13 (quoting Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir. 2014)).

         In this case, Plaintiffs seek (1) an award of monetary damages against Weber County, Ogden City, and Doe Defendants named in their individual capacities for constitutional violations stemming from being served with and prosecuted under the injunction; (2) a declaration that obtaining and enforcing a new injunction identical to the now-vacated injunction would violate Plaintiffs' constitutional rights; (3) a declaration that “maintaining Plaintiffs on a list of people to be treated as if they are members of a criminal organization, including being served with [a] nuisance injunction against that organization, ” would violate Plaintiffs' constitutional rights; and (4) an injunction requiring removal of Plaintiffs' names from Weber County and Ogden City's gang database. (Am. Compl. 19-26, Dkt. No. 50.)

         After describing some general principles relevant to each justiciability doctrine, the court will analyze each type of relief sought to determine whether Plaintiffs' claims survive justiciability challenges.

         1. Standing

         The principle that plaintiffs must have standing to bring a case is rooted in Article III, which limits the federal courts' exercise of judicial power to cases and controversies. Town of Chester, N.Y. v. Laroe Estates, Inc., ___ U.S.___, 137 S.Ct. 1645, 1650 (2017); see U.S. Const. art. III, § 2, cl. 1. To demonstrate Article III standing, a plaintiff must plausibly allege (1) an injury in fact, (2) fairly traceable to defendants' conduct, (3) that is redressable by a favorable judicial ruling. Rector v. City and Cty. of Denver, 348 F.3d 935, 942 (10th Cir. 2003). Moreover, “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Laroe Estates, 137 S.Ct. at 1650 (quoting Davis v. Federal Election Comm'n, 554 U.S. 724, 734 (2008)). In conducting this analysis, the court must accept as valid the constitutional violations alleged. Am. Humanist Ass'n, Inc. v. Douglas Cty. Sch. Dist. RE-1, 859 F.3d 1243, 1253 n.2 (10th Cir. 2017).

         “The injury-in-fact element requires ‘an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.'” Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Thus, for a retrospective damages claim, “[a] plaintiff who has suffered a concrete and particularized injury possesses standing to seek retrospective relief.” Am. Humanist, 859 F.3d at 1250. But “[a]lthough a plaintiff may present evidence of a past injury to establish standing for retrospective relief, he must demonstrate a continuing injury to establish standing for prospective relief, ” Sosa, 654 F.3d at 1019, or show he is “under a real and immediate threat of being injured in the future.” Am. Humanist, 859 F.3d at 1250 (quoting Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004)). “Past injuries are relevant to showing a risk of future harm, but ‘past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects.'” Am. Humanist, 859 F.3d at 1250 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).

         When a plaintiff's alleged injury arises from potential future enforcement of a criminal sanction, “an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.” Buhman, 822 F.3d at 1165 (quoting Susan B. Anthony List v. Driehaus, ___ U.S.___, 134 S.Ct. 2334, 2342 (2014)). Courts may conduct “pre-enforcement review” of a law when circumstances demonstrate the threatened enforcement is “sufficiently imminent.” Susan B. Anthony, 134 S.Ct. at 2342. Thus, “a plaintiff satisfies the injury-in-fact requirement where he alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Buhman, 822 F.3d at 1165 (quoting Susan B. Anthony, 134 S.Ct. at 2342).

         The second element requires that the alleged injury be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)) (alterations in the original). A fairly traceable connection must be more than “an attenuated connection, ” Robbins v. U.S. Dep't of Housing & Urban Dev., 72 F.Supp.3d 1, 7 (D.D.C. 2014), but need not rise to the level of proximate cause, Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005) (citing Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1273 (11th Cir. 2003)), and may include “harms that flow indirectly from the action in question, ” Focus on the Family, 344 F.3d at 1273.

         Finally, redressability requires that it “be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561.

         2. Mootness

         While standing ensures a case has “concrete adverseness” at its inception, Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012) (quoting Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007)), a case can become moot during the course of its proceedings “[i]f an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit.” Buhman, 822 F.3d at 1165 (quoting Campbell-Ewald Co. v. Gomez, ___U.S.___, 136 S.Ct. 663, 669 (2016)). For mootness, “[t]he crucial question is whether granting a present determination of the issues offered will have some effect in the real world. Put another way, a case becomes moot when a plaintiff no longer suffers actual injury that can be redressed by a favorable judicial decision.” Buhman, 822 F.3d at 1165-66 (quotations omitted); see Knox v. Serv. Emps. Int'l ...


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