United States District Court, D. Utah, Northern Division
LELAND KIM MCCUBBIN, JR. and DANIEL JOSEPH LUCERO, Plaintiffs,
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
WADDOUPS UNITED STATES DISTRICT JUDGE.
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.
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.
The Gang Injunction
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). The district
court entered a temporary restraining order that same day.
(Am. Compl. ¶ 23; Trece, 2013 UT 62, ¶ 7.)
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).)
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.)
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.)
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.)
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.)
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.)
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. ¶
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.)
14, 2012, after another evidentiary hearing,  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.)
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,
Lucero was convicted of violating the preliminary injunction
and another charge. (Id. ¶ 108.)
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.)
The Utah Supreme Court's Decision & Post-Conviction
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.)
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. ¶¶
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.
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.
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
2. Violation of substantive due process (Second Claim for
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.)
December 14, 2016, Weber County filed a Second Motion for
Judgment on the Pleadings. (See Dkt. No. 60.) After a
round of briefing, the court heard argument and took the
Motion under advisement.
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)).
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)
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
court addresses each of Weber County's arguments in
logical order, starting with threshold issues that implicate
the court's jurisdiction.
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
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)).
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.
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.
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).
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)).
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).
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.
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.
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