Aurelio, et al. v. Corrections Corporation, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
NICHOLAS J. AURELIO,

Plaintiff - Appellant,

and

ALAN DEATLEY,

Plaintiff,

v.

CORRECTIONS CORPORATION OF
AMERICA; CORE CIVIC; MICHAEL
MILLER; SARA ORTIZ, Investigator;
MS. WALTER; DAVID ZUPAN,

Defendants - Appellees.

–––––––––––––––––––––––––––––––––––

ALAN DEATLEY,

Plaintiff - Appellant,

and

NICHOLAS J. AURELIO,

Plaintiff,

v.

CORRECTIONS CORPORATION OF
AMERICA; CORE CIVIC; MICHAEL
MILLER; SARA ORTIZ, Investigator;
MS. WALTER; DAVID ZUPAN,

No. 19-1362
(D.C. No. 1:17-CV-01073-PAB-MEH)
(D. Colo.)

No. 19-1372
(D.C. No. 1:17-CV-01073-PAB-MEH)
(D. Colo.)
FILED
United States Court of Appeals
Tenth Circuit

October 21, 2020

Christopher M. Wolpert
Clerk of Court
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Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Nicholas J. Aurelio (No. 19-1362) and Alan DeAtley (No. 19-1372), appearing
pro se,
1
appeal the district court’s order for summary judgment in favor of
Corrections Corporation of America (CCA), Core Civic, Michael Miller, Sara Ortiz,
[Myra] Walter, and David Zupan on their civil rights complaint for the alleged
violation of their right to access the courts under the First, Sixth, and Fourteenth
Amendments. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
The district court found the following undisputed facts on summary judgment.
At all relevant times, Aurelio and DeAtley were prisoners in the custody of the
Colorado Department of Corrections (CDOC). They were incarcerated at the
Crowley County Correctional Facility (CCCF), a facility owned and operated by

*
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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.

1
Aurelio and DeAtley were represented by counsel in the district court.

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CCA, which now does business as Core Civic. Miller, Ortiz, Walter, and Zupan were
employed in various capacities at CCCF.
Aurelio and DeAtley arrived at CCCF in April 2016. At that time, the
mailroom opened all mail that contained compact discs (CDs) outside the presence of
the inmate to whom it was addressed to prevent the introduction of contraband. From
the time Aurelio arrived at CCCF, and continuing through July 2017, all mail sent to
him by his attorneys (legal mail) was opened outside his presence, including mail
with CDs that contained discovery, defense strategies, investigation notes, and work
product. There were no specific allegations or evidence presented regarding the
extent to which DeAtley’s legal mail was opened outside of his presence, or what
information it might have contained.
Aurelio submitted several grievances in which he complained that his legal
mail was opened outside his presence in violation of CDOC regulations and the
hearing officer agreed. In his deposition, Aurelio testified that “problems related
to [his] legal mail ‘greatly diminished,’” when three mailroom workers left their jobs
in May 2017. R., Vol. 3 at 34.
Aurelio and DeAtley sued under 42 U.S.C. § 1983 for the denial of their right
to access to the courts under the First, Sixth, and Fourteenth Amendments. The
district court noted that Aurelio’s claim rested “on the litigation of five legal
matters.” Id. at 34-35. The court found that “[t]wo of these cases were civil actions
that settled favorably to Mr. Aurelio.” Id. at 35. The third “case was a § 1983
lawsuit against the district attorneys who prosecuted his criminal case, which was
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dismissed [and affirmed on appeal] as an improper collateral attack on Mr. Aurelio’s
state court conviction. . . . Mr. Aurelio . . . [concedes] that . . . the legal mail
problems had [no] effect on this case.” Id. The fourth case concerned “Mr. Aurelio’s
motion for post-conviction relief, which is currently pending,” in which he “did not
have any problems filing his motion . . . due to legal mail issues.” Id. And the final
matter was “a malpractice case against his former attorney, which is currently
stayed.” Id.
As to DeAtley, the district court noted that his claim rested “on four cases.”
Id. “One case involves his criminal appeal in state court[,and] [t]he other three
matters are in Tribal Court.” Id. (citation omitted). At his deposition, DeAtley
testified that the problem with his criminal case concerns the page-limit restrictions
for briefs imposed by the Colorado appellate courts, which, in his opinion, prevent
him from fully explaining his case—not a problem with his legal mail or access to the
courts. DeAtley also testified that all the cases are intertwined and cannot move
forward until the criminal matter is resolved. He blamed the lack of progress on “a
corrupt judicial system that is moving slowly to thwart his appeal and lawsuits.” Id.
(internal quotation marks omitted).
II
CCA, Core Civic, and the individual employees moved for summary judgment
on several grounds, including Aurelio’s and DeAtley’s failure to establish the type of
injury required to maintain a claim for denial of access to the courts. The district
court recognized that to have standing to raise such a claim , “[a] plaintiff must show
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that defendants’ conduct resulted in actual injury by frustrat[ing], imped[ing], or
hinder[ing] his efforts to pursue a legal claim.” Id. at 38 (internal quotation marks
omitted) (quoting Simkins v. Bruce, 406 F.3d 1239, 1243 (10th Cir. 2005)). But
“[t]he injury requirement is not satisfied by just any type of frustrated legal claim,”
id. (internal quotation marks omitted) (quoting Lewis v. Casey, 518 U.S. 343, 354
(1996)); instead, “[o]nly the following claims, if impaired, may satisfy the injury
requirement: a direct appeal of a conviction, a habeas petition, or an action under . . .
§ 1983 to vindicate basic constitutional rights,” id. (internal quotation marks omitted)
(quoting Lewis, 518 U.S. at 354).
Because the undisputed facts established that neither Aurelio nor DeAtley
were injured by conduct that infringed upon their direct criminal appeals, civil rights
actions under § 1983, or habeas proceedings, the district court granted summary
judgment for defendants. This appeal followed.
III
We review a district court’s grant of summary judgment de novo, applying the
same standard as the district court. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1311
(10th Cir. 2009). Summary judgment is appropriate where “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).
IV
In their response in opposition to summary judgment, Aurelio and DeAtley
failed to discuss the law regarding the injury required for a denial-of-access claim or
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to come forward with any evidence to establish any interference with their direct
criminal appeals, civil rights actions under § 1983, or habeas proceedings. They
likewise ignore the law and undisputed facts on appeal.
Instead, in apparent recognition that they have no facts to establish the type of
injury required to maintain an access-to -the-courts claim, Aurelio and DeAtley argue
for the first time on appeal that the district court ignored their other claims, and
focused only on their claim for denial of access to the courts: “At no time, ever,
during this litigation did the Appellant[s] claim [their] only claim was an access-to -
court claim.” Aplt. Opening Br. (No. 19-1362) at 7.
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But there were no other claims.
In opposition to summary judgment, Aurelio and DeAtley themselves framed their
complaint as a denial-of-access claim only: “Plaintiffs[’] claim against the
Defendants is that Defendants’ violation of the First, Sixth and Fourteenth
Amendments of the United States Constitution interfered with their right of access to
the courts which caused damages and a need for injunctive protection.” R., Vol. 2 at
77 (emphasis added).
In any event, Aurelio’s and DeAtley’s failure to raise the issue of multiple
claims in the district court limits us to plain-error review. See Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011). The problem for Aurelio and
DeAtley is that they have failed to argue for plain error, which “marks the end of the

2
DeAtley “asserts all of the same arguments as . . . Aurelio has made, as if
they were made by . . . DeAtley . . . in this appeal. These arguments apply to . . .
DeAtley[’] . . . case as well.” Aplt. Opening Br. (No. 19-1372) at 1.
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road for an argument for reversal not first presented to the district court.” Id. at
1131. We thus decline to consider the argument.
V
For the foregoing reasons, we affirm the district court’s judgment. We deny
Aurelio’s second motion to appoint counsel on appeal. We deny DeAtley’s motion to
reconsider our previous order in which we refused to accept for filing more than 160
pages of attachments to his reply brief. We grant DeAtley’s motion to proceed in
forma pauperis on appeal but remind him of his obligation to make partial payments
until has completely paid the appellate filing fee.

Entered for the Court

Joel M. Carson III
Circuit Judge
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