Vreeland v. Schwartz

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

FOR THE TENTH CIRCUIT July 14, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
DELMART E.J.M. VREELAND, II,

Plaintiff - Appellant,

v. No. 19-1316
(D.C. No. 1:13-CV-03515-PAB-KMT)
CELIA SCHWARTZ, Legal Assistant II, (D. Colo.)
Colorado Department of Corrections,
Buena Vista Correctional Facility;
LIEUTENANT S. MORGAN,
BVCP/North Unit Colorado Department of
Corrections, Buena Vista Correctional
Facility; SERGEANT G. WOOD,
BVCF/North Unit Colorado Department of
Corrections, Buena Vista Correctional
Facility; CASE MANAGER JEFF
HANSEN, BVCP/North Unit Colorado
Department of Corrections, Buena Vista
Correctional Facility; DAVID COTTEN,
Administrative Service Manager, Colorado
Department of Corrections, Buena Vista
Correctional Facility; WILLIAM
BRUNELL, Associate Warden, Colorado
Department of Corrections, Buena Vista
Correctional Facility; JOHN DAVIS,
Warden, Colorado Department of
Corrections, Buena Vista Correctional
Facility,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT *

*
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
 _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________

Delmart E.J.M. Vreeland, II, a Colorado prisoner proceeding pro se, sued

several employees of the Colorado Department of Corrections (CDOC) under

42 U.S.C. § 1983, alleging violations of various constitutional rights. He now

appeals from district court orders dismissing some of his claims and granting

summary judgment against the rest. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

Vreeland also attempts to appeal from the court’s taxation of costs. We

dismiss that portion of the appeal because Vreeland waived the issue.

I. BACKGROUND & PROCEDURAL HISTORY

For most of the timeframe relevant to this lawsuit, Vreeland resided at

CDOC’s Buena Vista Correctional Facility. His original complaint alleged that

certain Buena Vista employees intentionally interfered with his right of access to the

courts, and retaliated against him for exercising his First Amendment right to file

grievances and other lawsuits. The district court screened his complaint and

dismissed it as legally frivolous. Vreeland appealed and we affirmed as to the

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.

2
right-of-access claims but reversed as to the First Amendment retaliation claims.

See Vreeland v. Schwartz, 613 F. App’x 679, 686 (10th Cir. 2015).

On remand, Vreeland filed an amended complaint, again claiming various

instances of retaliation for exercising his right to file grievances, or lawsuits, or both.

We describe the factual basis for each claim as it becomes relevant to our analysis,

below. We note, however, that some of these claims arguably went beyond First

Amendment retaliation (i.e., asserting violations of other constitutional rights), and

the district court sua sponte refused to consider them to that extent, deeming them

disallowed by this court’s mandate. Upon motion from defendants, the district court

also dismissed one claim as time-barred.

The remaining claims proceeded to discovery and summary judgment. The

district court referred the summary judgment motion to a magistrate judge, who

recommended granting the motion in full. Vreeland timely objected. Ultimately, the

district court granted summary judgment to defendants, finding that Vreeland failed

to show a genuine dispute of material fact as to one of his claims, and that he failed

to exhaust his administrative remedies as to the rest. The court accordingly entered

final judgment against Vreeland, and Vreeland timely filed a notice of appeal.

A few weeks later, the district court taxed costs against Vreeland. He then

filed a “corrected” notice of appeal, embracing both the judgment on the merits and

the costs award.

3
II. ANALYSIS

Vreeland’s amended complaint on remand asserted four claims for relief,

although he labeled them 1, 3, 4, and 5 (skipping 2). We will address them in turn.

We review all relevant issues de novo, namely, a statute-of-limitations dismissal at

the pleading phase, see Brady v. UBS Fin. Servs., Inc., 538 F.3d 1319, 1323

(10th Cir. 2008), a finding of failure to exhaust prison administrative remedies, see

Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), and a grant of summary

judgment based on the nonmovant’s lack of evidence, see Schneider v. City of Grand

Junction Police Dep’t, 717 F.3d 760, 766, 772 (10th Cir. 2013).

A. Claim 1

Vreeland’s claim 1 alleges that Buena Vista legal assistant Celia Schwartz was

upset with grievances and lawsuits filed by Vreeland, and so interfered with his legal

mail in August 2010. The district court dismissed this claim as time-barred under the

two-year statute of limitations applicable to § 1983 claims in Colorado.

The district court’s analysis reaches back to a separate lawsuit Vreeland filed

in July 2012 against “Sergeant Griggs,” another Buena Vista employee who allegedly

interfered with his legal mail. In March 2013, Vreeland moved to amend that

complaint to add Schwartz as a defendant with respect to the August 2010 mail

seizure (the same seizure at issue in claim 1 of this lawsuit). The district court

denied amendment, finding that the statute of limitations expired in August 2012, and

that Vreeland’s July 2012 original complaint did not relate back because it was clear

that Vreeland knew of Schwartz’s involvement from the outset.

4
 In this lawsuit, Vreeland attempts to circumvent that ruling by arguing that

Schwartz, in opposing amendment in the 2012 lawsuit, claimed that only Sergeant

Griggs had handled the legal mail in question. Then, after defeating amendment, she

submitted a declaration in support of Griggs’s summary judgment motion stating that

only she, not Sergeant Griggs, had handled that mail. Vreeland accordingly asserts

that the facts he needed to timely plead claim 1 were fraudulently concealed from

him.

Like the district court, we find this argument meritless. Vreeland’s proposed

amended complaint in the 2012 lawsuit alleges that, in August 2010, “Defendant

Griggs, over the objection of plaintiff, allowed another party to open the legal mail

and then defendant Schwartz, over the objection of plaintiff, began to read the legal

material page by page . . . .” Vreeland v. Griggs, No. 12-cv-1921-PAB-KMT

(D. Colo.), ECF No. 55-1 at 4 (filed Mar. 25, 2013). Further, “Defendant Schwartz

began to comment on [the materials she was reading] and even asked several

questions of plaintiff . . . that plaintiff refused to answer.” Id. Thus, even if

Schwartz changed her position over the course of the 2012 lawsuit (about which we

express no opinion), Vreeland’s allegations show that Schwartz committed her

alleged wrongs in his presence in August 2010. He had two years to sue her, but did

not. The district court correctly rejected Vreeland’s fraudulent concealment

argument and correctly dismissed claim 1 as time-barred.

5
 B. Claim 3

Vreeland’s claim 3 alleges that Schwartz, in summer 2013, would not allow

Vreeland to obtain thousands of jailhouse phone call recordings (purportedly relevant

to his state post-conviction proceedings, which were then ongoing) without giving

her permission to listen to them first, and that she did so to punish him for his many

grievances and lawsuits. At summary judgment, defendants claimed that Vreeland

failed to exhaust his administrative remedies as to this claim, because his grievances

did not alert defendants that he was complaining about retaliation.

Vreeland resisted defendants’ failure-to-exhaust defense with two arguments.

First, he said, CDOC’s grievance regulations do not require him to specifically point

out the retaliatory nature of the conduct of which he complained. Alternatively, if

the regulations do require such specificity, his case manager “specifically instructed

[him] not to file a grievance accusing Schwartz of retaliation, and instead to take the

high road and simply [state on the grievance form] what it was that [he] required and

ask how to obtain it.” R. vol. 7 at 32. Vreeland accordingly argued that exhaustion

had been made “unavailable” to him. See Little v. Jones, 607 F.3d 1245, 1250

(10th Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner’s

efforts to avail himself of an administrative remedy, they render that remedy

‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.”).

The district court focused solely on Vreeland’s unavailability argument. The

court found that Vreeland had not submitted evidence that would create a genuine

6
issue of material fact on the elements of a claim that a prison officer had rendered the

grievance process unavailable. Therefore, he failed to exhaust.

1. Level of Specificity Required

If CDOC regulations do not require the level of specificity for which

defendants argue, then Vreeland need not rely on his unavailability argument (and the

district court’s unavailability ruling was superfluous). So we first examine whether

CDOC grievance regulations require inmates to make clear that they are complaining

about retaliation when that is the legal theory they might ultimately assert in court.

Each prison system may decide for itself the amount of detail a prisoner must

include in a grievance to properly exhaust a claim. See Jones v. Bock, 549 U.S. 199,

218 (2007). CDOC has done so through its formal regulation governing prisoner

grievances, known as AR 850-04. The version of AR 850-04 in force in 2013, when

Vreeland grieved Schwartz’s refusal to give him access to the jailhouse phone call

recordings, established that “[t]he grievance shall clearly state the basis for the

grievance and the relief requested.” R. vol. 7 at 546 (§ IV.D.9.b). 1

Defendants do not argue that this language requires the inmate to identify

specific legal theories or use specific words. They instead focus on what is required

to “clearly state the basis for” a retaliation-based grievance. The problem, according

to defendants, is that our case law says an action taken in retaliation for exercising a

1
Vreeland argues at length that the district court erroneously allowed
defendants to rely on a post-2013 version of AR 850-04 in summary judgment
proceedings. Our disposition relies entirely on the version in force in 2013, so this
argument is moot.

7
constitutional right may lead to liability “even where [that] action . . . would be

otherwise permissible.” Smith v. Maschner, 899 F.2d 940, 948 (10th Cir. 1990).

Thus, whether using the word “retaliation” or not, an inmate must alert prison

authorities to the retaliatory nature of the grievance, so they know to investigate the

motive for the adverse action, and not just whether, e.g., the adverse action conforms

with prison regulations. 2

We find defendants’ argument persuasive under these circumstances, so we

need not decide whether we agree with it as a general matter. We have reviewed

Vreeland’s grievance forms and they provide no hint that Schwartz was motivated to

withhold the jailhouse recordings as punishment for filing grievances and lawsuits.

Rather, Vreeland explains why he needs the recordings as part of his post-conviction

proceedings, and then argues that the prison regulation Schwartz was invoking to

withhold the recordings could not be constitutionally applied to him under the

circumstances. CDOC, in response, likewise focused on the regulation in question.

Vreeland’s grievances directed CDOC to focus on an issue (the propriety of

the regulation) that may only be secondary in a retaliation context. Vreeland

accordingly did not give proper notice of the nature of the wrong he now asserts as

2
Defendants give as an example a letter Vreeland wrote to Buena Vista’s
associate warden regarding the events that became claim 4 (described below).
Vreeland stated in that letter that two prison employees arranged to have Vreeland
fired from a job “because . . . I [Vreeland] filed a grievance against [one of them]
and . . . sued Griggs [in the 2012 lawsuit].” R. vol. 6 at 462. This, according to
defendants, is enough to “describe[] retaliation without using the word itself.”
Aplee. Answer Br. at 43.

8
the basis for his claim 3. Cf. Jones, 549 U.S. at 218 (“The level of detail necessary in

a grievance to comply with the grievance procedures will vary from system to system

and claim to claim . . . .” (emphasis added)).

2. Unavailability

We now turn to Vreeland’s claim that his case manager instructed him not to

accuse Schwartz of retaliation. An inmate claiming that prison officials rendered the

grievance process effectively unavailable

must produce specific facts that show there is a genuine
issue of fact as to whether (1) the threat, machination, or
intimidation actually did deter him from lodging a
grievance and (2) the threat, machination, or intimidation
would deter a reasonable inmate of ordinary firmness and
fortitude from lodging a grievance.

May v. Segovia, 929 F.3d 1223, 1235 (10th Cir. 2019) (brackets and internal

quotation marks omitted). In the district court’s view, Vreeland failed to present

evidence raising a genuine issue of material fact as to either element.

We agree with the district court’s disposition, though for a slightly different

reason. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)

(“[W]e may affirm on any basis supported by the record, even if it requires ruling on

arguments not reached by the district court or even presented to us on appeal.”). Our

review of the record shows that Vreeland failed to produce evidence of any threat,

machination, or intimidation—a predicate for both elements of his unavailability

argument. Below, Vreeland said that his case manager wanted him to “take the high

road,” R. vol. 7 at 32, so the case manager “informed” or “advised” or “instructed” or

9
“told” Vreeland not to accuse Schwartz of retaliation, id. at 30–33; R. vol. 8 at 96.

See also R. vol. 7 at 32 (“[F]ailure to use the word retaliation would be due to the

advi[c]e of the case manager[.]”); id. at 33 (“[F]ailure to use the word retaliation[]

[was] based upon advi[c]e of the CDOC case manager[.]”). Vreeland points to

nothing suggesting that he faced any consequence for ignoring this advice.

For the first time on appeal, Vreeland asserts (without citation to the record)

that his case manager “said no grievance based on retaliation would be allowed, that

was the end of it.” Aplt. Opening Br. at 36. He further claims that, had he tried to

submit a retaliation grievance anyway, he “would have been issued [a] code of penal

discipline report for disobeying an order/direction, and been punished and placed in

segregation.” Id. None of this was before the district court. 3

“Absent special circumstances, we will not reverse on a ground not raised

below.” Hutton Contracting Co. v. City of Coffeyville, 487 F.3d 772, 782 (10th Cir.

2007). We see no special circumstances here, and we therefore affirm the district

court’s grant of summary judgment on claim 3. 4

3
The latter claim is also implicitly contradicted by the facts of claim 4, in
which he asserts—with no mention of negative consequences—that he used
subterfuge to circumvent his case manager’s refusal to allow him to file a grievance.
See infra.
4
Relying on Howard v. Waide, 534 F.3d 1227 (10th Cir. 2008), Vreeland says
that “exhaustion requirements are satisfied for new claims arising from [the] subject
of [the] initial grievance and those claims remain valid even if other claims are
dismissed.” Aplt. Opening Br. at 39. Vreeland severely stretches Howard. In that
case, the inmate grieved what he believed to be an imminent threat of assault, and the
threat was unfortunately carried out while the grievance process was ongoing. Id. at
1244. In response to the state’s argument that the inmate had not grieved the assault
10
 C. Claim 4

For much of his time at Buena Vista, Vreeland worked as a laundry clerk in his

unit. In August 2013, he changed jobs to “unit clerk.” R. vol. 6 at 334, ¶¶ 20–21;

see also R. vol. 7 at 61, ¶ 84. Vreeland does not say what a unit clerk does or what

advantages it has over being a laundry clerk, if any. Regardless, Vreeland’s claim 4

alleges that Lieutenant S. Morgan and Sergeant G. Wood arranged to have Vreeland

fired from his unit clerk job in August 2013; that Case Manager J. Hansen prevented

him from grieving Morgan’s and Wood’s actions; and that all three were motivated

by a desire to punish Vreeland for his many grievances and lawsuits.

Specifically as to his claim that he could not grieve the matter, Vreeland says

he complained to Hansen about the firing and asked for a grievance form. Hansen

told Vreeland it was not grievable. Soon after, Vreeland asked Hansen for a

grievance form so he could make a complaint against the mailroom. Hansen issued

the form. Vreeland used the form to grieve his termination from the unit clerk

position (saying nothing about the mailroom), and then submitted the form to

Hansen. “Hansen sent it back to [Vreeland] with the words denied and not grievable

on it.” R. vol. 7 at 64, ¶ 100.

At summary judgment, defendants argued that Vreeland failed to exhaust.

Vreeland responded that Hansen thwarted his attempt to exhaust his administrative

itself, we said that he “was not required to begin the grievance process anew when
the very risk to his safety that he identified during the grievance process came to
pass.” Id. In Vreeland’s case, by contrast, his alleged injury had already been
realized when he filed his deficient grievance.

11
remedies, making them “unavailable.” The district court rejected the unavailability

argument because the only evidence of Hansen’s actions was Vreeland’s own

declaration, which the district court deemed to be “uncorroborated, self-serving, and

conclusory,” and so incapable of “establish[ing] a genuine issue of material fact.”

R. vol. 8 at 125. Thus, the district court found a failure to exhaust.

On appeal, Vreeland argues that other evidence supported his declaration, i.e.,

it was not uncorroborated. The only evidence he cites shows that he complained via

registered mail to the associate warden about the allegedly retaliatory firing, not

about Hansen’s alleged refusal to allow him to grieve the matter. 5 Thus, the only

evidence before the district court supporting Vreeland’s unavailability argument was

Vreeland’s own story, as conveyed in his declaration. 6

We disagree with the district court’s use of the word “conclusory” to describe

this part of Vreeland’s declaration. Vreeland’s account does not “[e]xpress[] a

factual inference without stating the underlying facts on which the inference is

based.” Conclusory, Black’s Law Dictionary (11th ed. 2019). Vreeland states with

particularity what he claims to be the underlying facts.

5
This is the same letter described in n.2, supra. Vreeland makes no argument
that this letter may be deemed a substitute for CDOC’s formal grievance process.
6
In the district court, Vreeland said he had also attached the returned
grievance form—the form on which Hansen had supposedly written “denied and not
grievable”—as Exhibit S to his summary judgment response. See R. vol. 7 at 64.
The district court could not find Exhibit S in the summary judgment record (it is
likewise not in the record on appeal). Vreeland tells us that a scanning mistake in the
district court clerk’s office may have been to blame, but he does not argue that this
hypothetical mistake amounts to some sort of reversible error.

12
 We also cannot reject Vreeland’s declaration as “self-serving.” “So long as an

affidavit is based upon personal knowledge and sets forth facts that would be

admissible in evidence, it is legally competent to oppose summary judgment,

irrespective of its self-serving nature.” Sanchez v. Vilsack, 695 F.3d 1174, 1180 n.4

(10th Cir. 2012) (brackets, citation, and internal quotation marks omitted).

We are therefore left with the district court’s ruling that Vreeland’s declaration

is uncorroborated. While true, we cannot agree that this alone entitles defendants to

summary judgment. Defendants point us to no objective evidence, such as a video

recording, blatantly contradicting Vreeland’s story. Cf. Scott v. Harris, 550 U.S.

372, 378–81 (2007). Nor does Vreeland speculate about events he never witnessed,

see Fed. R. Evid. 602 (requiring non-expert witnesses to testify from personal

knowledge), or offer a story that is “unbelievable on its face, i.e., testimony as to

facts that the witness physically could not have possibly observed or events that

could not have occurred under the laws of nature,” Tapia v. Tansy, 926 F.2d 1554,

1562 (10th Cir. 1991) (brackets and internal quotation marks omitted). Nor does his

story contradict a previous sworn statement. See Lantec, Inc. v. Novell, Inc., 306

F.3d 1003, 1016 (10th Cir. 2002) (discussing the sham affidavit doctrine).

The district court held, in essence, that no reasonable jury could believe

Vreeland’s story. “On summary judgment, a district court may not weigh the

credibility of the witnesses.” Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir.

2008). We therefore cannot affirm summary judgment against Vreeland on claim 4

on the grounds given by the district court. But again, we may affirm on any basis the

13
record supports. Richison, 634 F.3d at 1130.

To succeed on a First Amendment retaliation claim, Vreeland must prove,

among other things, that he suffered an “adverse action,” meaning “an injury that

would chill a person of ordinary firmness from continuing to engage in

[constitutionally protected] activity.” Shero v. City of Grove, 510 F.3d 1196, 1203

(10th Cir. 2007). In this district court, defendants argued that Vreeland suffered no

adverse action because they did not fire him from his unit clerk job. From

defendants’ perspective, Vreeland was always a “Unit Worker.” R. vol. 6 at 334,

¶¶ 20, 23. First, he “served as a laundry clerk as a unit worker.” Id. ¶ 20. Next, he

was “re-assigned to be a unit clerk within the job of unit worker.” Id. ¶ 21. Finally,

he was “re-assigned” to a different (unspecified) role, but still “retained his position

as a unit worker.” Id. ¶¶ 22–23; see also id. at 342 (“Plaintiff suffered no adverse

action, as he remained a unit worker before and after the reassignment and was not

fired from a job.”).

Vreeland responded that this was a “game of semantics,” R. vol. 7 at 42, but

did not deny that he quickly received new duties after being reassigned from his unit

clerk position. Accepting defendants’ terminology for purposes of argument, he

instead asserted that “be[ing] reassigned to a lesser job like laundry clerk without just

cause” still constitutes retaliation. Id.

We cannot tell whether Vreeland meant to say that defendants sent him back to

the laundry clerk position, or whether Vreeland was simply using laundry clerk as an

example of something he considers “lesser.” More generally, we have thoroughly

14
examined the record and we can find nothing explaining why the new job was

“lesser” than the unit clerk position. Thus, viewing the facts in the light most

favorable to Vreeland, he was

• hired as a unit clerk, a position he does not otherwise describe;

• fired from that position on account of protected First Amendment

activity; and

• quickly re-hired to a position he does not name or describe.

“[O]ur standard for evaluating th[e] chilling effect on speech is objective,

rather than subjective.” Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). We

hold that Vreeland did not develop a record sufficient for the district court (or this

court) to find that he suffered a consequence that would chill a person of ordinary

firmness from exercising First Amendment rights. We simply know nothing about

the unit clerk job (other than its name) or the job Vreeland received after that.

Declaring in argument that the subsequent job was “lesser” is not enough. Cf. Dillon

v. Morano, 497 F.3d 247, 254 (2d Cir. 2007) (“While Dillon was understandably

upset with being assigned clerical tasks that he viewed as beneath his position, under

the circumstances presented in this case, this incident would not chill ‘a person of

ordinary firmness’ from exercising his free speech rights.”). On this basis, we affirm

the district court’s disposition of claim 4.

D. Claim 5

Vreeland’s claim 5 alleges that, in November 2013, Morgan, Wood, and

another prison official told Vreeland that he had to stop filing grievances and

15
lawsuits or he would lose his new job and his single-cell living arrangement, and he

would be transferred to a higher-security facility. Vreeland refused, and later that

same day he was fired from his job assignment. The next day, he was transferred to a

maximum-security facility, where he spent four days until being transferred again to

a lower-security facility.

Defendants attacked claim 5 through CDOC records purporting to show that,

months before November 2013, CDOC headquarters decided to transfer Vreeland as

“part of the ‘Close Custody Re-Alignment Program’ in which hundreds of offenders

were transferred to and from facilities throughout the state.” R. vol. 6 at 343. In

Vreeland’s case, this process began in late February 2013 when a case manager

named Ryan Fisher recalculated his custody rating (a numeric score that dictates an

inmate’s security classification). Vreeland’s custody rating had been 93, requiring

“close” custody (CDOC’s most restrictive rating), R. vol. 6 at 497, but Fisher’s

February 2013 recalculation reduced that score to 3, requiring “minimum restrictive”

custody (CDOC’s second-least restrictive rating), id. at 498. 7 For unclear reasons,

Fisher nonetheless recommended an “override to Medium [custody],” one step up

from minimum restrictive. Id. Fisher also recommended that Vreeland be housed at

a “level three facility.” Id. Someone named Simon Denwalt approved that

7
Defendants’ summary judgment briefing stated that Vreeland’s custody
rating dropped to 2 (not 3), see R. vol. 6 at 335, but their evidence shows that
Vreeland scored a 3 as of February or March 2013, see id. at 498. Vreeland agrees
that, at the time of his transfer, his custody rating was 3. See R. vol. 7 at 26.
Defendants cite the correct score (3) on appeal. See Aplee. Answer Br. at 12.

16
recommendation in early March 2013. Id.

Next, a CDOC computer record dated August 7, 2013, shows that CDOC

directed Vreeland’s transfer to a medium-security facility as part of the close custody

realignment project. See id. at 495.

Finally, an event log maintained by Vreeland’s case managers contains an

entry for November 25, 2013, written by Hansen, stating that Vreeland “came up on

the move sheet for a Level III Lateral, due to the Close Custody Re-Alignment

Project.” R. vol. 7 at 526. Vreeland was terminated from his job in preparation for

the transfer, and CDOC carried out the transfer the next day.

According to defendants, this evidence demonstrated that Vreeland could not

prove they caused his job termination or transfer. Vreeland countered with a CDOC

employee incident report form produced during discovery. The form was filled out

on November 26, 2013 (the day of Vreeland’s transfer) by Buena Vista employee

Bonnie Francis. Francis’s reason for writing the report is unclear. Whatever the

reason, Francis’s narrative quoted Hansen apparently taking credit for Vreeland’s

transfer: “Later on after [Vreeland] had returned to receiving [to be transported to his

new facility], [Case Manager] Hansen came up to me and said[,] [I]sn’t that great,

how I finally got him out of here[?]” R. vol. 7 at 580.

With this evidence as an anchor, Vreeland proposed to argue at trial that

Hansen used the close custody realignment program as “the tool . . . to get [him]

transferred.” Id. at 26. Vreeland theorized that Hansen submitted a request in

summer 2013 to have Vreeland included in the realignment project, but the request

17
was not approved until November 2013. Id. at 44–45. Vreeland offered no evidence

supporting this theory. It was merely an attempt to keep his claim afloat despite the

story told by the transfer paperwork.

The magistrate judge recommended granting defendants’ motion and the

district court ultimately agreed, reasoning that the evidence could only support a

conclusion that Vreeland’s transfer resulted from decisions made at CDOC

headquarters regarding the close custody realignment project, not from anything that

defendants orchestrated. Concerning the statement Francis attributed to Hansen, the

court reasoned that it “cannot bear the weight that [Vreeland] places on it.” R. vol. 8

at 128. Thus, the court granted summary judgment on claim 5.

On appeal, Vreeland primarily argues that “[t]he defense story and court ruling

that [case manager] Fisher lowered points [in February 2013] to cause [his] transfer

is patently false.” Aplt. Opening Br. at 50. In support, Vreeland attaches an informal

grievance and CDOC’s response, both written in January of this year (i.e., during this

appeal). In that document, he asks CDOC to tell him when Fisher became his case

manager, and CDOC responds that Fisher became his case manager in February

2015. Based on this, Vreeland argues that Fisher could not have lowered his custody

rating in February 2013.

One can imagine numerous reasons, both innocent and not, why Fisher’s name

might appear on a document under the “case manager” title allegedly two years

before he assumed that role toward Vreeland. But whatever we might imagine is

presently irrelevant. “Our adversarial system endows the parties with the

18
opportunity—and duty—to craft their own legal theories for relief in the district

court.” Richison, 634 F.3d at 1130. Vreeland had at least two obvious

opportunities—his summary judgment response brief, and his objection to the

magistrate judge’s recommendation—to argue to the district court that the Fisher

document was a fake. He never did. 8 He therefore forfeited the argument, and his

“failure to argue for plain error and its application on appeal . . . surely marks the end

of the road.” Id. at 1131. Thus, we do not reach it.

Vreeland also argues that other evidence supports his theory that Hansen used

the close custody realignment project as the tool to have Vreeland transferred. The

only evidence he cites is the August 7, 2013 CDOC computer record described

above, which shows CDOC’s approval to transfer Vreeland to a medium-security

facility. It says nothing about Hansen. See R. vol. 6 at 495. 9

Thus, the only competent evidence in the summary judgment record of

Hansen’s (or any other defendant’s) involvement in Vreeland’s transfer from Buena

Vista was: (i) Vreeland’s own declaration, in which he says that defendants

threatened him with a job loss and transfer if he would not drop his grievances and

8
To the contrary, in his summary judgment response brief he relied on the
Fisher document (although without saying anything specifically about Fisher) to
show that his custody rating dropped to 3 in early March 2013, in contrast to
defendants’ mistaken assertion that it had dropped to 2. See n.7, supra. Vreeland
also presumably has personal knowledge (a rough memory, at least) of who his case
manager has been at any particular time.
9
Vreeland also attempts to support his argument with information regarding
CDOC’s transfer process generally—information he learned through the grievance he
submitted in January of this year. Like the information about Fisher, this was not
before the district court and so we do not consider it.

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lawsuits; (ii) the undisputed fact that he indeed lost his job and was transferred

shortly after the alleged threat; and (iii) Francis’s report that Hansen claimed credit

for the transfer. Under the circumstances, we agree with the district court that the

jury could only reasonably find that Vreeland’s transfer was orchestrated by

individuals other than defendants, even if those defendants threatened or claimed

credit for it. In other words, his transfer would have happened no matter what, and

so was not caused by any of them. On this basis, we affirm the grant of summary

judgment against claim 5. 10

E. Costs

Vreeland argues that the district court erroneously awarded costs to CDOC, a

non-party. However, Federal Rule of Civil Procedure 54(d)(1) states, “On motion

served within the next 7 days [after taxation of costs], the court may review the

clerk’s action.” A party that “fail[s] to request the district court to review the clerk’s

award” under Rule 54(d)(1) “waive[s] the right to judicial review.” Bloomer v.

United Parcel Serv., Inc., 337 F.3d 1220, 1220–21 (10th Cir. 2003).

Here, the district court deputy clerk taxed costs on September 17, 2019.

Vreeland did not file a Rule 54(d)(1) motion (timely or otherwise). Rather, he filed

10
Having found that all of Vreeland’s claims fail on their merits, we need not
reach the argument that the district court misinterpreted our prior mandate when it
refused to allow Vreeland to assert any type of claim other than First Amendment
retaliation. The claims Vreeland sought to assert outside of First Amendment
retaliation would have failed for the same reasons described above (untimeliness,
failure to exhaust, and lack of evidence). And because all claims fail, we also need
not reach Vreeland’s arguments about supervisory liability, nor his argument that the
district court improperly rejected his request for a novel form of injunctive relief.

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objections to defendants’ bill of costs before the deputy clerk taxed costs, which the

deputy clerk overruled in his September 17 order. Vreeland does not argue that an

objection filed before taxation of costs, and ruled upon within the taxation of costs,

nonetheless persists in some sense and therefore qualifies as a Rule 54(d)(1) motion.

“[P]ro se parties [must] follow the same rules of procedure that govern other

litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation

marks omitted). Vreeland failed to follow Rule 54(d)(1)’s procedure for challenging

taxation of costs, and has therefore waived appellate review of that issue. We

dismiss this portion of his appeal.

III. CONCLUSION

We affirm the district court’s judgment on the merits. We dismiss the appeal

to the extent Vreeland challenges the district court’s award of costs. Finally, we

grant Vreeland’s motion to proceed without prepayment of costs or fees on appeal.

Entered for the Court

Joel M. Carson III
Circuit Judge

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