United States District Court, D. Colorado
NICHOLAS J. AURELIO and ALLEN DE ATLEY, Plaintiffs,
CORRECTIONS CORPORATION OF AMERICA, CORE CIVIC, INC., MICHAEL MILLER, INVESTIGATOR ORTIZ, MS. WALTER, and AVID M. ZUPAN, Defendants.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants' Motion for
Summary Judgment [Docket No. 40]. The Court has jurisdiction
under 28 U.S.C. § 1331.
Nicholas Aurelio and Allen De Atley are currently
incarcerated at the Crowley County Correctional Facility
(“CCCF”), Docket No. 6 at 1-2, ¶¶ 1-2,
which is part of the Colorado Department of Corrections
(“CDOC”). Docket No. 19 at 1-2, ¶¶ 1-2;
at 3, ¶ 10. Defendant Corrections Corporation of America
(“CCCA”) owned and operated CCCF at all relevant
times. Docket No. 6 at 2, ¶ 3. CCCF is now doing business
as Core Civic, Inc. Id. at 2, ¶ 4; Docket No.
19 at 2, ¶¶ 3-4.
individual defendants were employed at CCCF during the time
period relevant to the complaint. Docket No. 6 at 2,
¶¶ 5-8; Docket No. 19 at 2-3, ¶¶ 5-8.
Defendant Sara Ortiz was the facility investigator. Docket
No. 40 at 3, ¶ 7. Her job duties included supervising
CCCF's mail room and responding to grievances filed
regarding mail room issues, but she did not personally handle
any mail. Id., ¶¶ 7-9. Defendant David
Zupan was the assistant warden at CCCF. Id., ¶
10. Defendant Michael Miller was the warden. Id.,
¶ 12. The job responsibilities of defendants Zupan and
Miller included ensuring that all CCCF policies, including
legal mail policies, were followed. Id., ¶ 11,
13. Their job duties did not include personally handling
mail. Id. Defendant Myra Walter was the
administrative supervisor at CCCF. Id., ¶ 14.
She did not personally handle any legal mail. Id.,
procedure at CCCF was that, when compact discs
(“CDs”) were received in the mail, the CDs would
be opened outside the presence of the recipient inmate.
Docket No. 54 at 5, ¶ 8. The rationale behind this
practice was to provide an opportunity to determine whether
the CDs contained contraband. Id. This procedure was
in violation of the applicable Administration Regulation.
Id. at 6, ¶ 12.
plaintiffs arrived at CCCF in April 2016. Docket No. 40 at 2,
¶ 2. Issues regarding the opening of legal mail were
present immediately upon plaintiffs' arrival at CCCF and
continued through May to July 2017. Id., ¶
From April 2016 to July 2017, all of the mail that Mr.
Aurelio received from his attorneys was opened outside of his
presence. Docket No. 54 at 4, ¶ 3. This mail
included CDs sent by Mr. Aurelio's lawyer, which Mr.
Aurelio claims contained “discovery on all three of his
criminal matters, defense strategies, investigation notes and
work product.” Docket No. 6-1 at 2. Mr. Aurelio
submitted a number of grievances complaining that his legal
mail was opened outside of his presence. Docket No. 54 at 5,
¶ 4. The Department of Corrections' grievance
officer concluded that the process of opening inmates'
legal mail containing CDs outside of the inmates'
presence was a violation of administrative regulations.
Id. at 6, ¶ 13.
three employees who were working in the mail room during the
time in which plaintiffs complained of legal mail issues left
their employment at CCCF in May 2017. Docket No. 40 at 2,
¶ 4. The problems related to plaintiffs'
legal mail “greatly diminished” as a result of
those employees' departure. Id., ¶ 5.
Aurelio bases his access to courts claim on the litigation of
five legal matters. Id. at 4, ¶ 20. Two of these
cases were civil actions that settled favorably to Mr.
Aurelio. Id., ¶ 21. Another case was a §
1983 lawsuit against the district attorneys who prosecuted
his criminal case, which was dismissed as an improper
collateral attack on Mr. Aurelio's state court
conviction. Id., ¶ 22. The dismissal was upheld
on appeal.Id. Mr. Aurelio stated that he did
not believe that any of the legal mail problems had any
effect on this case. Id., ¶ 23. Another is Mr.
Aurelio's motion for post-conviction relief, which is
currently pending. Id. at 5, ¶ 27. Mr. Aurelio
did not have any problems filing his motion for
post-conviction relief due to legal mail issues. Id.
The last case is a malpractice case against his former
attorney, which is currently stayed. Id., ¶ 25.
Atley bases his access to courts claim on four cases.
Id., ¶ 28. One case involves his criminal
appeal in state court. Id., ¶ 30. The other
three matters are in Tribal Court. Id., ¶ 29.
Mr. De Atley believes that “his problems include a
corrupt judicial system that is moving slowly to thwart his
appeals and lawsuits.” Id. at 6, ¶ 32.
filed a complaint on June 2, 2017 raising a claim under 42
U.S.C. § 1983 and alleging the denial of the right of
access to the courts under the First, Sixth, and Fourteenth
Amendments. Docket No. 6 at 6, ¶ 25. On September 24,
2018, defendants filed a motion for summary judgment [Docket
No. 40]. Plaintiffs filed a response on December 26, 2018
[Docket No. 54], to which defendants replied on January 15,
2019. Docket No. 57.
judgment is warranted under Federal Rule of Civil Procedure
56 when the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
“the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must ...