Vreeland v. Schwartz

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 26, 2015

Elisabeth A. Shumaker
Clerk of Court
DELMART E.J.M. VREELAND, II,

Plaintiff - Appellant,

v. No. 14-1241
(D.C. No. 1:13-CV-03515-LTB)
CELIA SCHWARTZ, Legal Assistant II, (D. Colo.)
Colorado Department of Corrections,
Buena Vista Correctional Facility;
COLORADO DEPARTMENT OF
CORRECTIONS,

Defendants - Appellees.

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and McHUGH, Circuit Judges.

Delmart E.J.M. Vreeland, II, a Colorado prisoner, appeals from the dismissal

of his pro se civil-rights complaint alleging retaliation and denial of access to the

courts. The district court dismissed his complaint and this action as legally frivolous

under 28 U.S.C. § 1915(e)(2)(B). We affirm in part, reverse in part, and remand.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
 BACKGROUND

The claims in Mr. Vreeland’s first amended complaint arise out of an earlier

case filed by him in federal district court, Vreeland v. Griggs,

No. 12-cv-01921-PAB-KMT. In that case he alleged that officials at the Buena Vista

Correctional Facility (BVCF) had illegally opened his private legal mail. One of the

defendants was Celia Schwartz, a legal assistant at BVCF. Mr. Vreeland claims that

after he named her in the prior complaint she began retaliating against him by

denying him access to CD and VCR recordings and refusing to allow him to copy

pleadings. He also claims that this conduct deprived him of his right of access to the

courts.

The CD recordings allegedly were of telephone conversations involving

Mr. Vreeland and a codefendant while they were incarcerated in Iowa before he was

tried on charges in Colorado. According to Mr. Vreeland, their jailers made

thousands of recordings of telephone calls concerning his criminal case, including

calls in which the police attempted to get his codefendant to change his story and

testify against Mr. Vreeland, and conversations between Mr. Vreeland and his

lawyers. He listened to as many of the recordings as he could for 24 hours before his

trial. He asserts that the CDs containing the calls eventually were sealed by a

Colorado court because their contents are privileged. The VCR tapes allegedly

contain recordings of interviews between police officers and victims or witnesses.

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 Mr. Vreeland says that he needs access to the CD and VCR recordings to

pursue postconviction proceedings in state and federal courts in Colorado, Michigan,

and Florida.1 He alleges, however, that when he asked Ms. Schwartz how he could

obtain access to the recordings without allowing prison personnel to review them (in

violation of his attorney-client privilege), she responded that “she was not giving him

any access to anything,” and she “commented about the fact that [he] had named her

as a defendant in the [Griggs] case.” R., Vol. 1 at 72.

Mr. Vreeland then submitted an informal grievance asking “how he could

review the materials without them being listened to.” Id. Ms. Schwartz allegedly

responded to the grievance by placing certain conditions on his access to the

recordings: he could “only receive [four] CDs at a time; [any VCR] tapes must be

converted to (DVD) [format]; and the materials must be perused for security

content.” Id. at 73. She suggested that Mr. Vreeland obtain assistance from his

attorney in reviewing the recordings and complying with these conditions.

1
Mr. Vreeland claims that the recordings would enable him to prove the
following: (1) that contrary to their representations at trial, agents of the state had
offered his codefendant a deal to testify against him; (2) that the state attempted to
obtain perjured testimony from other witnesses against him; (3) that the state had
improperly listened to calls between him and his attorney, and had used privileged
information against him at trial; (4) that convictions in Florida and Michigan had
improperly been used to enhance his sentence in Colorado, in violation of his plea
agreements with authorities in those states; (5) that the trial judge had not previously
reviewed all of the VCR tapes as he said he had; and (6) that Mr. Vreeland’s
statement to law enforcement should have been excluded because he invoked his
right to counsel. He also claims, without providing specifics, that information on the
recordings would have allowed him to impeach agents of and witnesses for the state.

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 Mr. Vreeland objected in a formal grievance that he could not afford the cost

of having an attorney review the recordings; that he could not force the state of

Colorado to convert the VCR tapes to DVD format; and that having BVCF staff

review the recordings for security content would violate his attorney-client privilege.

According to the first amended complaint, Ms. Schwartz again replied that he could

not view the VCR tapes unless they were converted to DVD format and that if the

recordings could not be reviewed for security content, they would not be allowed into

the facility. Mr. Vreeland then filed appeals of his grievances through two additional

levels and received essentially the same response.

The copying claim concerns an amended complaint that Mr. Vreeland was

ordered to file in the Griggs case by March 22, 2013. Because Ms. Schwartz was a

named defendant, he was given permission to have copies of his amended complaint

made by his case manager instead of Ms. Schwartz. But when he handed his

pleadings to the case manager on March 21, Ms. Schwartz “grabbed the pleadings,

saw her name on them, and then denied [Mr. Vreeland] copies of legal pleadings”

because she said he “was over the legal access program limitations for copies of a

§ 1983 complaint.” Id. at 75. He asserts that Ms. Schwartz’s refusal to permit

copying “frustrated [his] filing of the Amended Complaint” and required him to

“prepare additional pleadings to the Court to explain why the Defendants were not

served,” which “cost [him] money.” Id. at 76. He filed grievances complaining that

Ms. Schwartz had retaliated against him and that the policy she purported to apply to

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limit the number of copies he could purchase “violates . . . both the federal and State

of Colorado Constitutions.” Id. His grievances were denied.

The district court determined that Mr. Vreeland’s access-to-the-courts claim

failed because such claims protect only an inmate’s preparation of initial pleadings in

a civil-rights action or an application for a writ of habeas corpus. Mr. Vreeland’s

claims involving access to recordings did not meet this standard because (1) he failed

to assert that denial of access to the recordings made him unable to initiate a motion

for postconviction relief in Colorado state court; (2) his previous 28 U.S.C. § 2254

motion (which was dismissed for failure to exhaust state remedies) demonstrated his

ability to present in Colorado state court a nonfrivolous, sufficiently pleaded claim

based on the recordings; and (3) his allegations concerning proceedings in Michigan

and Florida were conclusory and vague, and he failed to show that the denial of the

recordings prevented him from filing appellate or postconviction proceedings in

those states. The court dismissed Mr. Vreeland’s retaliation claims because he

“fail[ed] to assert an injury or that he has been unable to continue filing grievances or

a civil complaint against [Ms.] Schwartz.” R., Vol. 1 at 120. And the court

dismissed Mr. Vreeland’s constitutional challenge to the Department of Corrections

policy restricting the number of photocopies an inmate may purchase for legal

pleadings because he had no per se constitutional right to photocopies, and because

he failed to assert an actual injury resulting from the denial of photocopies.

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 ANALYSIS

1. Standard of Review

Mr. Vreeland proceeded in forma pauperis (IFP) in district court. The IFP

statute instructs courts to dismiss the complaint or appeal of a party proceeding IFP

“at any time if the court determines that . . . the action or appeal is frivolous or

malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A claim is frivolous “if it lacks an

arguable basis either in law or in fact.” Fogle v. Pierson, 435 F.3d 1252, 1259

(10th Cir. 2006) (internal quotation marks omitted). We generally review a district

court’s dismissal for frivolousness for an abuse of discretion. See id. But issues of

law are reviewed de novo.” See id.

2. Case Assignment Procedure

Mr. Vreeland first argues that the district judge assigned to this case lacked

“jurisdiction” over it. He claims that this case should have been assigned to a

different judge under a local procedural rule regarding repeat pro se litigants. The

local rule he cites, Colo. L. Civ. R. 40.1(c)(1), plainly is designed to further judicial

economy, order, and convenience rather than to control a judge’s authority to hear a

case. Moreover, because there is no question of subject-matter jurisdiction,

Mr. Vreeland has forfeited any objection he may have had to the judicial assignment

by not presenting his objection until appeal. See Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1127-28 (10th Cir. 2011).

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 3. Forced Waiver of Attorney-Client Privilege

Mr. Vreeland contends that the district court failed to consider that

Ms. Schwartz’s actions forced him to choose between either waiving his

attorney-client privilege by permitting prison officials to review the recordings, or

losing his right to review the evidence and to present his case on postconviction

review. Requiring him to choose, he asserts, denied him his First Amendment right

of access to the courts.

This court has discussed two types of prisoner claims asserting denial of the

right of access to the courts. Both require a showing of actual injury—that is, that

the defendant’s actions hindered the prisoner’s ability to proceed with an actual,

nonfrivolous claim. See generally Lewis v. Casey, 518 U.S. 343, 351-52 (1996)

(requiring showing of actual injury to support access-to-courts claim).

Mr. Vreeland’s complaint fails to satisfy the actual-injury requirement under either

theory.

The first type of access-to-the-courts claim concerns a prison’s duty “to

provide affirmative assistance in the preparation of legal papers.” Cohen v.

Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010) (internal quotation marks omitted).

This claim is limited in scope; it requires only that the prison provide tools “that the

inmates need in order to attack their sentences directly or collaterally, and in order to

challenge the conditions of their confinement.” Lewis, 518 U.S. at 355. A state is

not required, however, to provide such legal assistance “beyond the preparation of

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initial pleadings.” Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995). We agree

with the district court that Mr. Vreeland failed to allege a sufficient actual injury

under this type of access-to-the-courts claim. He fails to adequately allege that he

could not properly prepare a petition for postconviction relief without the

“assistance” of direct and unconditional access to the recordings. In particular, he

does not explain why the allegations in his prior § 2254 application would be

insufficient if asserted in a Rule 35(c) petition.

The second type of denial-of-access claim sweeps more broadly. It prohibits

conduct that unduly hinders litigation at any stage of the proceedings. See Cohen,

621 F.3d at 1317 (addressing access-to-courts claim based on prison mail clerk’s

refusal to send prisoner’s legal mail, which allegedly prevented prisoner from filing

objections to magistrate judge’s recommendations). Mr. Vreeland’s complaint and

his appellate briefing could be read to allege this type of claim. He asserts that in his

various litigation he must locate and create a record concerning the relevant calls,

something he cannot do without access to the recordings, which the prison is

preventing.

These allegations do not, however, adequately state a claim. Mr. Vreeland has

failed to allege an actual, nonspeculative injury.

With respect to his postconviction proceedings in Florida and Michigan,

Mr. Vreeland asserts only that the recordings reveal breaches of his plea agreements

in those states. But without more specifics, we cannot discern how those recordings

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would be relevant to a plausible claim for relief in those states. Hence, his claims of

interference with access to courts in those states must fail.

Turning to Mr. Vreeland’s Colorado Rule 35(c) proceedings, he has not shown

how prison restrictions on his access to the recordings would impair his litigation if

he has a nonfrivolous claim. Contrary to his assertions that he has no right to counsel

in his Rule 35(c) proceeding, he would be entitled to the assistance of counsel in

reviewing the recordings if he filed a nonfrivolous complaint. When a defendant

files a Rule 35(c) motion, the court must “promptly review” it and determine whether

it sufficiently alleges a claim that should be allowed to proceed. See

Colo. R. Crim. P. 35(c)(3)(IV). If the motion passes muster, the defendant is entitled

to have the motion served on the public defender, who is then charged with

determining whether it is in the interest of justice to represent the defendant at public

expense. See id. 35(c)(3)(V); Colo. Rev. Stat. § 21-1-104(1)(b). If the case passes

review by the district court and the public defender, the defendant has a right to

counsel. See Silva v. People, 156 P.3d 1164, 1168 (Colo. 2007). Only if the district

court determines that the petition is “wholly unfounded,” or the public defender finds

it without “arguable merit,” can appointment of counsel be denied. Id.2

Accordingly, because of the procedure for providing assistance of counsel for

colorable claims, the prospect of actual injury from denial of access to the recordings
2
Mr. Vreeland asserts that “the state and federal courts have denied [his]
motions for counsel.” Aplt. Br. at 13. But this conclusory statement, presented
without context or explanation, is inadequate in light of Colorado law.

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is merely speculative. Also, it is worth noting that notwithstanding his protests to the

contrary, Mr. Vreeland appears to understand his true situation; in one of his

grievances, shortly after asserting that Rule 35(c) does not allow counsel to be

appointed, he stated that “my only other alternative is to motion the trial court to

appoint counsel for the post conviction litigation.” R., Vol. 1 at 93.

4. Retaliation Claim

“It is well-settled that prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his right of access to the courts.” Gee v.

Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (brackets and internal quotation

marks omitted). To establish a retaliation claim, Mr. Vreeland had to show (1) that

he was engaged in constitutionally protected activity, (2) that the defendants’ actions

caused him to suffer an injury that “would chill a person of ordinary firmness from

continuing to engage in that activity,” and (3) that the adverse action was

substantially motivated as a response to his protected conduct. Id. (internal quotation

marks omitted). The district court ruled that he could not establish the second

element, because he “fail[ed] to assert an injury or that he has been unable to

continue filing grievances or a civil complaint against [Ms.] Schwartz.” R., Vol. 1

at 120.

But Mr. Vreeland claims that the district court completely ignored several

forms of retaliation taken against him, including the fact that he “was denied and

fired from inmate job assignments” and that his right to file grievances was denied or

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impeded. Aplt. Opening Br. at 14. Although he alleged these retaliatory acts in his

original complaint, they were not included in the first amended complaint. For this

reason, we would ordinarily not consider them in assessing the retaliation claim. See

Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (“[A]n amended complaint

super[s]edes an original complaint and renders the original complaint without legal

effect.” (internal quotation marks omitted)).

Mr. Vreeland contends, however, that we should consider these allegations

because the district court improperly forced him to abandon the original complaint

that contained them. After reviewing his original complaint, the magistrate judge

ordered him to amend it because the complaint misjoined multiple claims and

defendants and exceeded the 30-page limit for a prisoner complaint. Mr. Vreeland

objected to the order and the district court overruled his objection. He then filed his

first amended complaint, which dropped several of his allegations of retaliation and

the defendants who allegedly committed them.

We therefore examine whether the order to amend was proper. A plaintiff may

join multiple defendants in one action if

(A) any right to relief is asserted against them jointly, severally, or in
the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in
the action.

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Fed. R. Civ. P. 20(a)(2). We review de novo the district court’s legal conclusion that

the codefendants were improperly joined under Rule 20(a)(2). See EEOC v. Peabody

W. Coal Co., 610 F.3d 1070, 1076 (9th Cir. 2010).

Mr. Vreeland’s original complaint contained three types of claims: (1) claims

asserted against Ms. Schwartz and others for impeding his access to the courts, in

which he also asserted that Ms. Schwartz had retaliated against him for naming her as

a defendant in a complaint; (2) retaliation claims involving his prison employment

that did not specifically mention Ms. Schwartz but did assert that other defendants

were retaliating against him because of the grievances and litigation he had filed

against prison staff; and (3) a claim against the Executive Director of the Colorado

Department of Corrections (CDOC) for adopting regulations that allegedly deprived

him of his rights.

Mr. Vreeland argues that the actions of the defendants “were all related to each

other and the claims and Defendants raised/named were all part of one string of

conduct that caused the violations of right which were raised.” Aplt. Opening Br. at

15. In his objections to the magistrate judge’s order he contended that the claims and

defendants he named were properly joined as part of his retaliation claim because he

“was subjected to retaliation by [defendants S. Morgan, J. Wood, and J. Hansen] as a

direct result of the grievances [he] filed against Defendant Schwartz.” R., Vol. 1

at 57.

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 We agree that the alleged acts of retaliation, though involving different

defendants and different acts, arose out of a “series of transactions” arising out of

common facts: namely, acts of retaliation for the same protected conduct by

Mr. Vreeland. The claims were therefore within the permissive joinder rules of

Fed. R. Civ. P. 20(a)(2). And these allegations do not appear to be subject to

dismissal based on the district court’s reasons for dismissing the retaliation

allegations contained in the first amended complaint. We also note that acts of

retaliation may be actionable even if they do not prevent or discourage the particular

plaintiff from engaging in protected activity, so long as they would “chill a person of

ordinary firmness.” Gee, 627 F.3d at 1189. Mr. Vreeland may be more determined

than most.

Accordingly, we vacate the dismissal of the retaliation claim in the first

amended complaint and remand with instructions to grant Mr. Vreeland leave to file

an amended complaint reasserting his retaliation claim against all defendants who can

properly be joined under Rule 20(a)(2). In light of this disposition, we need not

resolve any other appellate arguments Mr. Vreeland has asserted against the

dismissal of his retaliation claim.

5. Invalidation of Administrative Regulation

In the first amended complaint Mr. Vreeland also asserted a claim against the

CDOC for adopting a regulation concerning photocopies of legal documents that

deprived him of his constitutional rights. The district court held that the Eleventh

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Amendment barred this claim against the CDOC. And it ruled that it would be futile

to grant Mr. Vreeland leave to amend to name an individual defendant from which he

could seek injunctive relief, see Ex Parte Young, 209 U.S. 123, 150-56 (1908)

(permitting suit for prospective relief against state official), because Mr. Vreeland

did not have a per se constitutional right to a certain number of photocopies, and he

did not assert an injury of constitutional dimension based on how the policy was

applied to him. We agree, and affirm the dismissal of this claim for substantially the

reasons stated by the district court.

CONCLUSION
We reverse the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B) of

Mr. Vreeland’s retaliation claim, and remand with instructions to permit him to file

an amended complaint reasserting that claim. We affirm the remainder of the district

court’s judgment.

Entered for the Court

Harris L Hartz
Circuit Judge

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