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Aurelio v. Correctional Corporation of America

United States District Court, D. Colorado

August 29, 2019

NICHOLAS J. AURELIO and ALLEN DE ATLEY, Plaintiffs,
v.
CORRECTIONS CORPORATION OF AMERICA, CORE CIVIC, INC., MICHAEL MILLER, INVESTIGATOR ORTIZ, MS. WALTER, and AVID M. ZUPAN, Defendants.

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendants' Motion for Summary Judgment [Docket No. 40]. The Court has jurisdiction under 28 U.S.C. § 1331.

         I. BACKGROUND[1]

         Plaintiffs 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.[2] CCCF is now doing business as Core Civic, Inc. Id. at 2, ¶ 4; Docket No. 19 at 2, ¶¶ 3-4.

         The 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., ¶ 15.[3]

         The 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.

         Both 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., ¶ 3.[4] 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.[5] 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.

         The 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.[6] The problems related to plaintiffs' legal mail “greatly diminished” as a result of those employees' departure. Id., ¶ 5.

         Mr. Aurelio bases his access to courts claim on the litigation of five legal matters.[7] 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.[8]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.

         Mr. De 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.

         Plaintiffs 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.

         II. LEGAL STANDARD

         Summary 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).

         Where “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 ...


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