United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff
CELIA SCHWARTZ, Legal Assistant II, Colorado Department of Corrections, Buena Vista Correctional Facility, and COLORADO DEPARTMENT OF CORRECTIONS, Defendants.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
On December 30, 2013, Plaintiff, Delmart E.J.M. Vreeland, II, initiated this action by filing pro se a Prisoner Complaint that challenges the conditions of his confinement and submitting a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff, however, failed to provide a certified trust fund account statement for the six months immediately preceding the filing of this action, which he is required to do pursuant to 28 U.S.C. § 1915(a)(2). When Magistrate Judge Boyd N. Boland directed Plaintiff to cure this deficiency, he filed the statement, but the statement was not certified. At the same time, Plaintiff submitted a Motion for Order, ECF No. 5, requesting that the Court allow his family to make monthly $50 payments for eight months.
The Court denied the Motion for Order and directed Plaintiff either to pay the $400 filing fee in full or confirm to the Court that he desires to comply with 28 U.S.C. § 1915(b)(2). See ECF No. 6. Plaintiff then filed a Notification confirming his agreement with § 1915(b)(2), and the Court granted him leave to proceed pursuant to § 1915, noting that he was able to pay an initial partial filing fee of $52.00.
Magistrate Judge Boland then directed Plaintiff to file an Amended Complaint that complies with Fed.R.Civ.P. 20(a)(2). See ECF No. 9. Plaintiff filed an objection to the Order, claiming that all parties are properly joined. This Court overruled Plaintiff's Objection and directed him to file an Amended Complaint that complies with Magistrate Judge Boland's February 18 Order. Finally on April 7, 2014, Plaintiff filed an Amended Complaint.
Subsection (e)(2)(B) of 28 U.S.C. § 1915 requires a court to dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks monetary relief against a defendant who is immune from such relief. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Under § 1983, a plaintiff must allege that the defendants have violated his rights under the Constitution and laws of the United States while they acted under color of state law. Adickes v. S. H. Kress & Co, 398 U.S. 144, 150 (1970).
Plaintiff states two claims, including a denial of access to the courts and retaliation. Plaintiff contends that Defendant Schwartz denied him photocopies and access to tape recordings in retaliation for his filing grievances and civil complaints against her. Plaintiff seeks money damages against Defendant Celia Schwartz and declaratory and injunctive relief against Defendants Schwartz and Colorado Department of Corrections. The Court will dismiss this action as legally frivolous for the reasons stated below.
1. Access to the Courts
Plaintiff asserts that his attorney was willing to send to him tape recordings of calls that were illegally recorded by the state prior to his trial. Am. Compl. at 7. Plaintiff claims that he needed to review these recordings for the purpose of his postconviction litigation in state and federal court and that the recordings include evidence that the state asked witnesses to lie for the state and offered a deal to Plaintiff's codefendant. Id. Plaintiff also asserts that he needs to review the calls and use the information in his postconviction petitions in his Florida and Michigan convictions (convictions used to enhance his Colorado conviction) to show illegal use of and a violation of plea agreements in those state convictions. Id. at 8. Plaintiff further asserts that Defendant Schwartz told him that he could have only four tapes at one time, he would have to have the VCR tapes converted to DVD's, and the tapes would have to be perused for security reasons. Id. at 9. Plaintiff concludes that because he refused to waive his attorney client privilege and allow Defendant Schwartz to listen to the recordings he was denied access to the recordings, and as a result he was denied access to the courts because he could not use the exculpatory evidence in his postconviction review actions filed in state and federal courts. Id. at 15.
Plaintiff concludes that he has been denied access to criminal court discovery materials that are required for his postconviction litigation and that the tapes include exculpatory evidence which could reverse his State of Colorado criminal court convictions. Am. Compl. at 10.
The right of access to the courts extends only as far as protecting an inmate's ability to prepare initial pleadings in a civil rights action regarding his current confinement or in an application for a writ of habeas corpus. See Wolff v. McDonnell, 418 U.S. 539, 576 (1974); Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995). An inmate must satisfy the standing requirement of "actual injury" by showing that the denial of legal resources hindered his efforts to pursue a nonfrivolous claim. Lewis v. Casey, 518 U.S. 343, 349-353 (1995). "The Supreme Court has never extended the Fourteenth Amendment due process claim based on access to the courts... to apply further than protecting the ability of an inmate to prepare a petition or a complaint.'" See Love v. Summit County, 776 F.2d 908, 914 (10th Cir. 1985) (quoting Wolff v. McDonnell, 418 U.S. 539, 576 (1974)). "Once an inmate gains access to the court through a properly prepared and filed initial pleading, the court will then be in a position to determine whether the claim has any merit and whether the issues raised are unusually complex." See Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987). The district court then has discretion to appoint counsel if necessary. Id. Prison authorities, however, are not required to enable a prisoner to " discover grievances and to litigate effectively once in court." Casey, 518 U.S. at 354. Furthermore, inmates are not guaranteed the "wherewithal to file any and every type of legal claim" but only "provided with the tools to attack their sentences, directly or collaterally." Id. at 355.
In Casey, the Supreme Court cites two examples of when an inmate's efforts to pursue a legal claim may be hindered. First, an inmate's efforts may be hindered when a complaint prepared by an inmate is dismissed for failure to satisfy a technical requirement due to deficiencies in a prison's legal assistance facilities. Casey, 518 U.S. at 351. Another example of hindering an inmate's efforts would be when an inmate is so stymied by inadequacies of the law library that he is unable to file a complaint. Id. Neither of the examples set forth in Casey are at issue in this case.
Plaintiff does not assert that he was unable to initiate a postconviction motion in the State of Colorado. His claim addresses his inability to litigate effectively once he is in court by being denied criminal court discovery materials that include exculpatory evidence which could reverse his State of Colorado criminal court convictions. Plaintiff concedes that he has already listened to as many of the calls included in the recordings as he could in a twenty-four hour period prior to his trial. Plaintiff asserts there are 5, 102 calls included in the twenty-three compact discs, at least one of the calls involves the Douglas County Sheriff's Office and District Attorney offering a deal to Plaintiff's codefendant if he would testify, and the calls revealed the state asked witnesses to lie. Am. Compl. at 6-7. Nothing Plaintiff asserts supports a finding that he was unable to initiate a nonfrivolous action challenging his criminal conviction in Colorado.
Furthermore, Plaintiff's access claim is belied by the 28 U.S.C. § 2254 application that he filed in this Court and that was dismissed for failure to exhaust state court remedies. See Vreeland v. Davis, et al., No. 12-cv-02039-LTB, ECF No. 1 (D. Colo. Feb. 26, 2013) (The application is a 285-page pleading. Plaintiff concedes that all claims presented in the application have been presented in his direct appeal or will be presented, if necessary in a Colo. R. Crim. P. 35(c) postconviction motion). In the application, Plaintiff readily identified the subject of the recordings; he specifically asserted that one of the recorded telephone calls between a state's witness and investigator supported a finding of fabricated evidence and his attempts during trial to use the recordings to establish fabricated statements by witnesses were denied by the trial court because the recordings were suppressed as irrelevant. Id., ECF No. 1-1 at 64. The Court finds that Plaintiff either was able in his § 2254 habeas application in this Court or will be able in any state postconviction motion to initiate a nonfrivolous case and sufficiently plead his recording claim based on the claims he set forth in Case No. 12-cv-02039-LTB in this Court.
Plaintiff, therefore, has failed to assert any prejudice due to his inability to access the recordings and as a result has failed to state an actual injury. See Simkins v. Bruce, 406 F.3d 1239, 1244 (10th Cir. 2005) (the prejudice from the interference with a plaintiff's legal mail must be directly and inextricably tied to the adverse disposition of his underlying case). Based on the above findings, Plaintiff has failed either to assert the violation of a legal interest or to state facts that support an arguable claim. Plaintiff's access claim as it pertains ...