Gregory D. Crosby, a/k/a Gregory D. Cosby v. WARDEN ADX; LT. BANELOUS, DHO Hearing Officer; J. HOLBROOK, Correctional Counselor

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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GREGORY D. CROSBY,
a/k/a Gregory D. Cosby,
Petitioner - Appellant,
v.
WARDEN ADX; LT. BANELOUS,
DHO Hearing Officer; J. HOLBROOK,
Correctional Counselor,
Respondents - Appellees.
No. 22-1173
(D.C. No. 1:21-CV-03233-LTB-GPG)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Gregory D. Crosby is a federal inmate. He filed a habeas application under
28 U.S.C. § 2241, claiming he had been denied due process in a disciplinary hearing.
The hearing stemmed from an incident report alleging he destroyed property. After
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
December 21, 2022
Christopher M. Wolpert
Clerk of Court
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concluding Mr. Crosby did not exhaust administrative remedies, the district court
dismissed the suit without prejudice. Mr. Crosby appeals. 1
The respondents urge us to dismiss this appeal as moot. It is moot, they say,
because Mr. Crosby has received all the relief this suit could provide. While the suit
was pending in the district court, Mr. Crosby gave notice that his incident report had
been expunged. But he maintained that he still sought monetary relief. Noting that
damages are not an available habeas remedy, see Preiser v. Rodriguez, 411 U.S. 475,
494 (1973), the respondents conclude the case is moot because a favorable decision
could not provide Mr. Crosby any further relief.
Mr. Crosby did not file a reply brief to address the respondents’ mootness
argument. 2 By failing to address the mootness argument, he has waived any
responses that are not obvious. See Eaton v. Pacheco, 931 F.3d 1009, 1031
(10th Cir. 2019) (“Eaton doesn’t respond to the state’s mootness argument in his
reply brief. Accordingly, we treat any non-obvious responses he could have made as
waived and assume the state’s mootness analysis is correct.”). Mootness, of course,
“is an issue of subject matter jurisdiction.” Ind v. Colo. Dep’t of Corr., 801 F.3d
1209, 1213 (10th Cir. 2015). But “our duty to consider unargued obstacles to subject
matter jurisdiction does not affect our discretion to decline to consider waived
1 Mr. Crosby represents himself, so we construe his filings liberally. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2 Mr. Crosby filed a notice informing the court that he did not intend to submit
a reply brief.
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arguments that might have supported such jurisdiction.” Tompkins v. U.S. Dep’t of
Veterans Affs., 16 F.4th 733, 735 n.1 (10th Cir. 2021) (brackets and internal
quotation marks omitted).
Seeing no obvious answer to the respondents’ mootness argument, we dismiss
this appeal. We deny Mr. Crosby’s motion to proceed without prepaying costs and
fees because he does not advance “a reasoned, nonfrivolous argument on the law and
facts.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court
Joel M. Carson III
Circuit Judge
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