Patrick Duray Portley-El v. Colorado Department of Corrections ( 2022 )


Menu:
  •      The summaries of the Colorado Court of Appeals published opinions
    constitute no part of the opinion of the division but have been prepared by
    the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
    Any discrepancy between the language in the summary and in the opinion
    should be resolved in favor of the language in the opinion.
    SUMMARY
    July 28, 2022
    
    2022COA86
    No. 20CA1992, Portley-El v. DOC — Colorado Department of
    Corrections — Prisoner Identification — Commitment Name —
    Religious Land Use and Institutionalized Persons Act;
    Justiciability — Mootness — Voluntary Cessation Exception
    The plaintiff, an inmate, sued the Colorado Department of
    Corrections (DOC), alleging, as relevant to this appeal, that a DOC
    policy requiring inmates to use their “commitment name” violates
    the Religious Land Use and Institutionalized Persons Act (RLUIPA),
    42 U.S.C. § 2000cc. While the litigation was pending, the DOC
    voluntarily stopped enforcing the challenged policy at the facility
    where plaintiff is incarcerated. The district court then dismissed
    the RLUIPA claim as moot.
    After analyzing the voluntary cessation exception to mootness,
    a division of the court of appeals concludes that plaintiff’s RLUIPA
    claim is not moot. And because the DOC is not entitled to
    judgment as a matter of law on the RLUIPA claim, the division
    reverses the judgment and remands for further proceedings.
    COLORADO COURT OF APPEALS                                           
    2022COA86
    Court of Appeals No. 20CA1992
    Kit Carson County District Court No. 10CV42
    Honorable Michael K. Singer, Judge
    Patrick Duray Portley-El,
    Plaintiff-Appellant,
    v.
    Colorado Department of Corrections,
    Defendant-Appellee.
    JUDGMENT REVERSED AND CASE
    REMANDED WITH DIRECTIONS
    Division VI
    Opinion by JUDGE HARRIS
    Dunn and Rothenberg*, JJ., concur
    Announced July 28, 2022
    Patrick Duray Portley-El, Pro Se
    Philip J. Weiser, Attorney General, Nicole S. Gellar, First Assistant Attorney
    General, Denver, Colorado, for Defendant-Appellee
    *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
    VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
    ¶1    The Colorado Department of Corrections (DOC) has a policy
    requiring inmates to use their “commitment name” on all prison
    documents, including inmate mail and requests for services (the
    naming policy). The “commitment name” is the name that appears
    on the mittimus at the time of the inmate’s initial commitment to
    the DOC. Patrick Duray Portley-El, an inmate, sued the DOC,
    alleging, among other things, that the naming policy violates his
    rights under the Religious Land Use and Institutionalized Persons
    Act (RLUIPA), 42 U.S.C. § 2000cc.
    ¶2    During the course of the litigation, the DOC voluntarily
    stopped enforcing the naming policy against Portley-El. It then
    moved for summary judgment on the ground that Portley-El’s
    RLUIPA claim was moot. The trial court granted the motion and
    entered judgment in favor of the DOC.
    ¶3    We agree with Portley-El that the claim is not moot. We
    therefore reverse the judgment and remand the case for further
    proceedings.
    I.   Background
    ¶4    Portley-El was committed to the custody of the DOC in 1990.
    His commitment name is Patrick Portley.
    1
    ¶5    Shortly after his incarceration, Portley-El converted to the
    Moorish Science Temple of America (MSTA) faith. The MSTA, a sect
    of Islam, is an approved faith group at DOC. See DOC Admin. Reg.
    800-01. In accordance with his religious beliefs, which everyone
    agrees are sincerely held,1 Portley-El began to use a “religious”
    name, created by adding the suffix “El” to his former last name (i.e.,
    the surname portion of his commitment name). He did not legally
    change his name, though.
    ¶6    In 2010, after prison officials denied him services for failing to
    comply with the naming policy, Portley-El sued the DOC and
    various prison employees. He asserted, among numerous other
    claims, that the naming policy violated his rights under the First
    Amendment and RLUIPA.
    ¶7    Years of litigation ensued. By 2019, all of Portley-El’s claims
    had been resolved except his claims against the DOC concerning
    the naming policy. In the most recent prior appeal, a division of
    1“It does not appear that the state challenges the sincerity of
    Portley-El’s beliefs or that this question was at issue in connection
    with the naming dispute under RLUIPA.” Portley-El v. Dycus, slip
    op. at ¶ 55 n.15 (Colo. App. No. 17CA1633, July 11, 2019) (not
    published pursuant to C.A.R. 35(e)).
    2
    this court affirmed the trial court’s summary judgment in favor of
    the DOC on Portley-El’s First Amendment claim. See Portley-El v.
    Dycus, slip op. at ¶ 46 (Colo. App. No. 17CA1633, July 11, 2019)
    (not published pursuant to C.A.R. 35(e)). But the division reversed
    with respect to the RLUIPA claim and remanded for a determination
    on the merits. Id. at ¶ 55.
    ¶8    On remand, the DOC moved for summary judgment on two
    grounds. First, it contended that the RLUIPA claim was moot
    because Portley-El is now incarcerated at Buena Vista Correctional
    Facility, “where he is permitted to add the suffix ‘-El’ to his
    commitment name when submitting requests for certain services.”
    Second, it contended that even if the claim was not moot, the DOC
    was entitled to summary judgment because Portley-El could not
    demonstrate that the naming policy imposed a substantial burden
    on the free exercise of his religion and, in any event, the policy was
    the least restrictive means of furthering a compelling governmental
    interest. See Yellowbear v. Lampert, 
    741 F.3d 48
    , 55-56 (10th Cir.
    2014) (explaining the elements of a RLUIPA claim).
    ¶9    The trial court agreed with the DOC’s first contention and
    dismissed the RLUIPA claim as moot, ending the litigation. The
    3
    court noted, however, that if the claim were not moot, factual
    disputes would have precluded summary judgment.
    ¶ 10   Portley-El appeals, arguing that under the “voluntary
    cessation” exception to mootness, the RLUIPA claim is not moot.
    II.    The RLUIPA Claim
    ¶ 11   This appeal requires us to answer two questions: First, is the
    RLUIPA claim moot? Second, if the claim is not moot, can we
    nonetheless affirm on the ground that the DOC is entitled to
    judgment as a matter of law on the RLUIPA claim? As we explain
    below, the answer to both questions is no.
    A.      The Claim Is Not Moot
    ¶ 12   Under the DOC’s naming policy, all inmates must be identified
    by commitment name and assigned DOC number. See DOC Admin.
    Reg. 850-07(IV)(A)(1)-(2) (formerly, DOC Admin. Reg. 950-06). If an
    inmate legally changes his name, his new name is recorded in DOC
    records as an “AKA”; the inmate can use his AKA on prison
    documents and mail but only in addition to his commitment name.
    ¶ 13   As we understand Portley-El’s position, he argues that the
    naming policy is unlawful because it requires him to use his
    commitment name while the Koran prohibits him from using any
    4
    name other than his religious name. In the alternative, he says
    that, even assuming a “dual” name policy is permissible, the
    naming policy still violates RLUIPA because it requires an inmate to
    legally change his name before he can use his religious name as an
    AKA.
    ¶ 14     At some point after Portley-El’s transfer to Buena Vista, the
    DOC stopped enforcing its naming policy against him (and,
    possibly, other similarly situated inmates at that facility). It is not
    entirely clear, though, whether the DOC has permitted Portley-El to
    use his religious name instead of his commitment name (as the
    DOC’s briefing suggests) or in addition to his commitment name (as
    the trial court’s order suggests).
    ¶ 15     Regardless, the DOC contends that its decision not to enforce
    the naming policy renders Portley-El’s RLUIPA claim moot. The
    trial court agreed, concluding that Portley-El “no longer faces
    adverse consequences” for using his religious name, “as long as he
    utilizes his commitment name” as well.
    ¶ 16     Portley-El argues that the trial court erred by concluding that
    his claim is moot.
    5
    ¶ 17   We review de novo the question of whether a claim is moot.
    People ex rel. Rein v. Meagher, 
    2020 CO 56
    , ¶ 14.
    ¶ 18   A claim is moot when the relief sought, if granted, would have
    no practical legal effect on an actual existing controversy. See
    Brown v. Colo. Dep’t of Corr., 
    915 P.2d 1312
    , 1313 (Colo. 1996). Put
    another way, a claim becomes moot “when a plaintiff no longer
    suffers ‘actual injury that can be redressed by a favorable judicial
    decision.’” Ind v. Colo. Dep’t of Corr., 
    801 F.3d 1209
    , 1213 (10th
    Cir. 2015) (citations omitted).
    ¶ 19   But there are a number of exceptions to the mootness doctrine
    including, as relevant here, the “voluntary cessation” exception.
    The rationale behind this exception is obvious: if a defendant’s
    voluntary cessation of a challenged practice could deprive a court of
    its power to determine the legality of the practice, then in each case,
    the defendant would be “free to return to [its] old ways.” Friends of
    the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 
    528 U.S. 167
    , 189
    (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 
    455 U.S. 283
    , 289 n.10 (1982)); see also Chihuahuan Grasslands All. v.
    Kempthorne, 
    545 F.3d 884
    , 892 (10th Cir. 2008) (The voluntary
    cessation exception “exists to counteract the possibility of a
    6
    defendant ceasing illegal action long enough to render a lawsuit
    moot and then resuming the illegal conduct.”); Owens v. Carlson,
    
    2022 CO 33
    , ¶ 24 (inmate plaintiff’s claim was not moot because if
    the court were to dismiss the appeal, the DOC “would be free to
    change its mind yet again” and reinstitute the challenged practice
    concerning calculation of parole eligibility date). Thus, “a defendant
    cannot automatically moot a case simply by ending its unlawful
    conduct once sued.” Prison Legal News v. Fed. Bureau of Prisons,
    
    944 F.3d 868
    , 880 (10th Cir. 2019) (quoting Already, LLC v. Nike,
    Inc., 
    568 U.S. 85
    , 91 (2013)).
    ¶ 20   Voluntary cessation may moot a claim, however, if two
    conditions are satisfied: (1) there is no reasonable expectation that
    the alleged violation will recur, and (2) interim relief has completely
    and irrevocably eradicated the effects of the alleged violation. Ind,
    801 F.3d at 1214. Portley-El focuses on the second condition: he
    says that the DOC has not demonstrated the requisite unlikelihood
    that the naming policy will be reinstated.
    ¶ 21   To satisfy this standard, the defendant “bears the formidable
    burden of showing that it is absolutely clear the allegedly wrongful
    behavior could not reasonably be expected to recur.” Friends of the
    7
    Earth, 
    528 U.S. at 190
    . This burden is “stringent” and “heavy.” 
    Id. at 189
     (quoting United States v. Concentrated Phosphate Exp. Ass’n,
    
    393 U.S. 199
    , 203 (1968)).
    ¶ 22   While application of the voluntary cessation exception depends
    on the unique facts of a given case, see Am. Civ. Liberties Union of
    Mass. v. U.S. Conf. of Catholic Bishops, 
    705 F.3d 44
    , 56 (1st Cir.
    2013), courts typically focus on four factors.
    ¶ 23   First, has the defendant actually changed or rescinded the
    challenged policy or merely stopped enforcing it? Compare St. Louis
    Fire Fighters Ass’n Int’l Ass’n of Fire Fighters Local 73 v. City of St.
    Louis, 
    96 F.3d 323
    , 328-29 (8th Cir. 1996) (the plaintiff’s claim was
    moot where city defendant eliminated challenged testing procedure
    used for determining promotions), with Parents Involved in Cmty.
    Schs. v. Seattle Sch. Dist. No. 1, 
    551 U.S. 701
    , 719 (2007) (claim was
    not moot where school district merely discontinued challenged
    admissions process pending outcome of litigation); Nakauchi v.
    Cowart, 
    2022 COA 77
    , ¶¶ 30, 34 (claim was not moot where county
    documented its changed policy “in email communications and
    meeting minutes” but “never set out [the change] in any formal
    policy document”).
    8
    ¶ 24    Second, if the policy is still in effect, has the defendant
    stopped enforcing it system-wide or only with respect to the
    plaintiff? See Rich v. Sec’y, Fla. Dep’t of Corr., 
    716 F.3d 525
    , 532
    (11th Cir. 2013) (inmate plaintiff’s claim was not moot where, after
    litigation commenced, prison officials began offering kosher meals
    only at the plaintiff’s facility).
    ¶ 25    Third, has the defendant made a formal, explicit promise not
    to resume the challenged practice or policy? Compare Prison Legal
    News, 944 F.3d at 884 (claim was moot where warden submitted
    declaration averring that prison would abide by its new policy
    concerning rejection of magazines and not revert to the former
    policy); Brown v. Buhman, 
    822 F.3d 1151
    , 1170-71 (10th Cir. 2016)
    (claim was moot where county prosecutor adopted a policy and filed
    a declaration asserting that the plaintiffs were under no credible
    threat of prosecution based on the policy), with Porter v. Clarke, 
    923 F.3d 348
    , 365 (4th Cir. 2019) (claim challenging conditions of
    confinement was not moot where prison officials testified they did
    not currently intend to revert to prior conditions, but they declined
    to commit the department to the “nonreversion promise”).
    9
    ¶ 26   And fourth, has the defendant continued to defend the legality
    of the challenged practice or policy? See Fields v. Speaker of Pa.
    House of Representatives, 
    936 F.3d 142
    , 161 (3d Cir. 2019) (the
    plaintiffs’ claim was not moot where state legislature continued to
    defend the constitutionality of the challenged practices “despite its
    counsel’s statements at oral argument that it would not reinstate
    them”).
    ¶ 27   The DOC relies on three employee declarations to establish
    that Portley-El’s claim is moot. Two of the declarations (by the
    Assistant Director of Offender Services and the Associate Director of
    Legal Services) merely defend the legality of the naming policy,
    explaining that it is the least restrictive means of furthering the
    DOC’s compelling interest in maintaining security, inmate safety,
    and consistent record-keeping. Neither declaration even
    acknowledges that the DOC has ceased enforcing the naming policy
    at any of its facilities and, therefore, neither declarant represents
    that the DOC will not resume enforcing the policy.
    ¶ 28   The third declaration, by an administrative services manager,
    explains that the “current practice” at the Buena Vista Correctional
    Facility, where Portley-El is incarcerated, is to allow inmates to
    10
    “include the suffix ‘-El’ after the offender’s commitment (last) name”
    when requesting certain services. The declaration does not indicate
    that enforcement of the policy has been suspended at any other
    facility. Nor does the declaration purport to commit the DOC to any
    particular action; indeed, no declarant says that the DOC intends to
    continue to suspend enforcement of the policy, even with respect to
    only the Buena Vista facility.
    ¶ 29   The trial court was persuaded that the declarations tied the
    DOC’s hands, and therefore the DOC could not resume enforcement
    of the policy without facing “some rather adverse consequences.”
    We respectfully disagree with the trial court’s interpretation of the
    declarations. See Colo. Dep’t of Pers. v. Alexander, 
    970 P.2d 459
    ,
    467 (Colo. 1998) (“An appellate court may draw its own conclusions
    from operative documentary material in the record.”).
    ¶ 30   In our view, the declarations do not make “absolutely clear,”
    Friends of the Earth, 
    528 U.S. at 190
    , that the DOC will not resume
    enforcement of the naming policy. Most importantly, the naming
    policy is still in effect: the DOC has not amended the relevant
    11
    administrative regulation.2 See Tandy v. City of Wichita, 
    380 F.3d 1277
    , 1291 (10th Cir. 2004) (voluntary cessation of a policy will not
    moot a claim unless officials undertake changes that are
    “permanent in nature” and “foreclose a reasonable chance of
    recurrence of the challenged conduct”). Thus, contrary to the
    DOC’s assertion on appeal, the naming policy has not, in fact,
    changed since the litigation began. It has merely been relocated to
    a different section of the administrative regulations.
    ¶ 31   Next, the DOC decided to stop enforcing the policy only after
    years of litigation, and, even then, only with respect to the facility
    where Portley-El is incarcerated. See Rich, 716 F.3d at 532
    (changing the policy “late in the game” and implementing it only at
    the facility where the plaintiff was incarcerated suggested that
    2 In contrast, after Portley-El challenged the DOC’s policy of
    excluding MSTA members from Ramadan observance, the DOC
    officially amended its administrative regulations, mooting Portley-
    El’s Ramadan-related claims. See Portley-El v. Colo. Dep’t of Corr.,
    slip op. at 5-6 (Colo. App. No. 15CA2097, Aug. 25, 2016) (not
    published pursuant to C.A.R. 35(e)) (noting that by the time of the
    DOC’s motion to dismiss, it had formally amended the applicable
    regulation and explaining that, absent evidence to the contrary,
    courts can “assume that formally announced changes to official
    governmental policy are not mere litigation posturing” (quoting
    Sossamon v. Lone Star State of Texas, 
    560 F.3d 316
    , 325 (5th Cir.
    2009))).
    12
    prison officials changed course to moot the case (quoting Harrell v.
    Fla. Bar, 
    608 F.3d 1241
    , 1266-67 (11th Cir. 2010))); see also
    Brown, 822 F.3d at 1171 (holding that a claim regarding a non-
    prosecution policy was moot, but that the claim might not have
    been moot if the policy applied only to the plaintiffs rather than to
    all similarly situated individuals).
    ¶ 32   And no prison official has ever given any assurance, much less
    made an official declaration or promise, that the DOC will not
    resume enforcing the naming policy at some point in the future.
    The DOC has simply confirmed that its “current practice” is not to
    enforce the policy at one of its facilities. See Sasnett v. Litscher, 
    197 F.3d 290
    , 291 (7th Cir. 1999) (Defense counsel’s representation that
    the state defendants had “no present intention” of reinstating the
    challenged prison regulation was “far from being an assurance, or
    even a prediction, that the state will not do so.”), abrogated on other
    grounds by Bridges v. Gilbert, 
    557 F.3d 541
    , 551-52 (7th Cir. 2009);
    see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 
    601 F.3d 1096
    , 1117-18 (10th Cir. 2010) (a claim may be rendered moot
    by a statutory change or a withdrawal or alteration of an
    administrative policy, but not by a “mere informal promise or
    13
    assurance . . . that the challenged practice will cease” (quoting
    Burbank v. Twomey, 
    520 F.2d 744
    , 748 (7th Cir. 1975))). Thus,
    because the DOC has not formally agreed to discontinue the
    naming policy, it will not face any adverse consequences if it later
    reinstates the policy. Cf. Gordon v. Lynch, 
    817 F.3d 804
    , 806-07
    (D.C. Cir. 2016) (case was mooted where government formally
    conceded that prosecuting the plaintiff was not viable, as that
    representation “would likely estop the government from taking a
    contrary position in the future”).
    ¶ 33   Finally, not only has the DOC declined to distance itself from
    the naming policy, but it has actively pursued the right to maintain
    the policy throughout the eleven years of litigation, including in this
    appeal. See Fields, 936 F.3d at 161; see also Hall v. Bd. of Sch.
    Comm’rs, 
    656 F.2d 999
    , 1000-01 (5th Cir. 1981) (permanent
    discontinuance of a school prayer reading did not moot First
    Amendment claim because the school board disputed the
    constitutional issue up until the day of trial and discontinued the
    practice only after suit was filed).
    ¶ 34   True, as the DOC points out, courts may “accord ‘more
    solicitude’ to government officials” than to private actors when
    14
    evaluating a claim that voluntary conduct has mooted a case.
    Prison Legal News, 944 F.3d at 881 (quoting Rio Grande Silvery
    Minnow, 
    601 F.3d at
    1116 n.15). But such solicitude can only go
    so far. See Nakauchi, ¶ 29 (granting “some solicitude” to officials
    under the voluntary cessation doctrine does not equate to “absolute
    deference to a government entity’s profession of good faith”). In the
    absence of even the barest assurances that the naming policy will
    not be enforced in the future, we cannot conclude that the DOC has
    carried its heavy burden to demonstrate that the RLUIPA claim is
    moot. See id. at ¶¶ 30-31 (declining to afford “solicitude” to
    county’s voluntary cessation of challenged policy because, among
    other things, the county had not formally changed the policy); see
    also Rich, 716 F.3d at 531-32 (recognizing that although the
    government carried a lesser burden than other actors under the
    voluntary cessation exception, it nonetheless failed to meet its
    burden).
    B.   The DOC Is Not Entitled to Judgment as a Matter of Law
    ¶ 35   The DOC argues that even if the RLUIPA claim is not moot,
    affirmance is still proper because it is entitled to judgment as a
    matter of law on the claim. We agree with the trial court, however,
    15
    that disputed issues of fact preclude summary judgment in favor of
    the DOC. See Churchey v. Adolph Coors Co., 
    759 P.2d 1336
    , 1340
    (Colo. 1988) (party moving for summary judgment has burden of
    establishing lack of a triable factual issue).
    ¶ 36   As the DOC correctly notes, under RLUIPA, the plaintiff has
    the initial burden to show that the exercise of his religion has been
    substantially burdened by a prison policy. See 42 U.S.C. § 2000cc-
    1(a); Yellowbear, 741 F.3d at 54-55 (discussing the plaintiff’s initial
    burden under RLUIPA). If the plaintiff meets that burden, the
    prison officials must show that enforcing the challenged policy is
    the least restrictive means of furthering a compelling governmental
    interest. See 42 U.S.C. § 2000cc-1(a)(2); Holt v. Hobbs, 
    574 U.S. 352
    , 362-63 (2015).
    ¶ 37   Whether Portley-El’s religious exercise has been substantially
    burdened by the naming policy cannot be resolved as a matter of
    law. For one thing, the determination of a substantial burden “in
    general is ‘fact-specific and requires a case-by-case analysis.’”
    Moussazadeh v. Tex. Dep’t of Crim. Just., 
    703 F.3d 781
    , 791 (5th
    Cir. 2012) (citation omitted). And contrary to the DOC’s
    characterization of Portley-El’s position, he does not exclusively
    16
    contend that the naming policy constitutes a mere inconvenience or
    an offense; he also says that the Koran forbids him from using his
    former name. That claim is viable at this stage. See Ali v. Wingert,
    569 F. App’x 562, 564 (10th Cir. 2014) (A requirement that an
    inmate use his commitment name could impose a substantial
    burden “if, say, a prisoner’s sincerely held religious beliefs forbade
    any mention of a former name.”). So too is his alternative claim
    that the policy substantially burdens his religious exercise because
    he cannot use his religious name (even in conjunction with his
    commitment name) unless he obtains a legal name change, which,
    he says, he cannot afford and his religion prohibits. See
    Moussazadeh, 703 F.3d at 793-94 (prison policy requiring inmate to
    pay for kosher meals substantially burdened inmate’s religious
    exercise).3
    3 The DOC appears to argue that the naming policy does not burden
    an inmate’s religious exercise because, currently (at least at Buena
    Vista Correctional Facility), an inmate may use his religious name
    without obtaining a legal name change. But this argument misses
    Portley-El’s (and the trial court’s) precise point: in order to
    accommodate Portley-El’s exercise of his religion, the DOC had to
    stop enforcing its naming policy, which does require a legal name
    change before an inmate can use his religious name as an AKA.
    17
    ¶ 38   Nor are we persuaded by the DOC’s backup argument — that
    even if Portley-El could show that the naming policy imposes a
    substantial burden, the DOC has demonstrated, as a matter of law,
    that the policy is the least restrictive means of furthering its
    compelling interest in maintaining security and accurate record-
    keeping. The DOC may have presented evidence of a compelling
    interest, but it does not point to any evidence in the record to
    support a finding of “least restrictive means.” See Jehovah v.
    Clarke, 
    798 F.3d 169
    , 177 (4th Cir. 2015) (Officials failed to show
    that a prison’s ban on communion wine was the least restrictive
    means of promoting safety and security because the affidavits did
    “not even attempt to explain why an absolute ban is the least
    restrictive measure available.”).
    ¶ 39   Therefore, based on the current record, we cannot affirm the
    trial court’s decision on the alternative ground that the DOC is
    entitled to judgment as a matter of law on the RLUIPA claim.
    III.   Portley-El’s Request for Costs
    ¶ 40   Portley-El argues that he is entitled to an award of costs. We
    discern no basis for such an award.
    18
    ¶ 41   Under C.R.C.P. 54(d), a prevailing party in a civil case is
    generally entitled to costs. However, the rule specifically precludes
    awarding costs against “the state of Colorado” and “its officers or
    agencies,” except “to the extent permitted by law.” C.R.C.P. 54(d);
    see also C.A.R. 39(b). Portley-El has not pointed us to any
    statutory authority that would support an award in this case.4
    ¶ 42   Thus, even if Portley-El were the prevailing party (which he is
    not, because the RLUIPA claim has not been resolved on the
    merits), he is not entitled to costs.5
    IV.   Conclusion
    ¶ 43   The judgment is reversed, and the case is remanded for
    further proceedings consistent with this opinion.
    4 In his briefing on remand in the trial court, Portley-El relied on
    section 13-16-104, C.R.S. 2021, as authority for an award of costs.
    That statute applies to a plaintiff who recovers damages. RLUIPA
    does not authorize an award of damages against states or individual
    state actors. See Sossamon v. Texas, 
    563 U.S. 277
    , 285-86 (2011).
    5 Portley-El seeks costs “[i]n the interests of justice,” on the theory
    that his lawsuit has twice caused the DOC to alter its conduct —
    once by formally amending a policy to allow MSTA members to
    observe Ramadan and now by informally allowing certain inmates
    to use their religious names as an AKA. This “catalyst theory” of
    prevailing party has been rejected by the Supreme Court. See
    Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum.
    Res., 
    532 U.S. 598
    , 605 (2001).
    19
    JUDGE DUNN and JUDGE ROTHENBERG concur.
    20