*

This order and judgment is not binding precedent except under the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.

FILED

United States Court of Appeals

Tenth Circuit

February 19, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN NASIOUS,

Plaintiff - Appellant, No. 09-1422

v. (D. Colorado)

TWO UNKNOWN B.I.C.E. AGENTS

AT THE ARAPAHOE COUNTY

JUSTICE CENTER; AGENT

MICHAEL WHEELER, United States

Department of Homeland Security -

Immigration and Customs

Enforcement; AGENT LEE, United

States Department of Homeland

Security - Immigration and Customs

Enforcement,

Defendants - Appellees.

(D.C. No. 1:06-CV-01765-ZLW-KMT)

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

After examining the appellate briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

Appellate Case: 09-1422 Document: 01018370052 Date Filed: 02/19/2010 Page: 1
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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.

Proceeding pro se, John Nasious initiated a federal action against

Defendants pursuant to Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional

rights stemming from the filing of a federal immigration detainer on August 3,

2005. The matter was referred to a magistrate judge and Defendant Wheeler filed

a motion to dismiss or, in the alternative, for summary judgment. Nasious did not

respond to the motion. 

The magistrate judge prepared a Report and Recommendation,

recommending the grant of summary judgment. The uncontested facts showed

Nasious was arrested by Denver police officers on June 6, 2005, on forgery

charges. Nasious was interviewed by Defendant Wheeler, an ICE agent, on

August 3, 2005. During the interview, Nasious told Wheeler he was a native of

Greece and could not speak English. Based on these representations and

Wheeler’s independent search of DHS records, Wheeler filed an immigration

detainer with the Denver County Sheriff. The detainer was not lifted until April

24, 2006, when Nasious provided ICE with a copy of his Illinois birth certificate. 

The magistrate judge concluded the filing of the detainer did not violate

Nasious’s due process rights because the undisputed evidence showed Nasious’s

lie to Wheeler was the sole and proximate cause of Wheeler’s belief that Nasious

Appellate Case: 09-1422 Document: 01018370052 Date Filed: 02/19/2010 Page: 2
1

The district court’s dismissal of all claims against the remaining

defendants is not at issue in this appeal. 

-3-

was an illegal alien. Further, the lodging of the detainer had no effect on

Nasious’s detention because he was already in custody at the Denver County Jail

awaiting the disposition of his state criminal case. The detainer was nothing more

than a request that Denver County authorities notify ICE prior to Nasious’s

release. To the extent Nasious argued the detainer disqualified him from being

transferred to a different facility, the Report and Recommendation concluded

Nasious did not have a protected liberty interest in being housed in a community

corrections facility. The Report and Recommendation also recommended denying

Nasious’s equal protection claim because he failed to show any disputed issue as

to any material fact necessary to resolve such a claim. Likewise, the record

contained no support for Nasious’s intentional infliction of emotional distress

claim. 

Nasious filed timely objections to the Report and Recommendation and

those objections were considered by the district court. The court, however,

granted summary judgment in favor of Defendant Wheeler, concluding the

detainer did not constitute a restraint on or deprivation of a liberty interest upon

which a due process violation could be premised because it did not impose,

create, or affect the duration of Nasious’s detention in the Denver County Jail or

the Arapahoe County Detention Facility.1

 

Appellate Case: 09-1422 Document: 01018370052 Date Filed: 02/19/2010 Page: 3
2

Nasious’s motion to proceed in forma pauperis on appeal is granted.

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Nasious appeals the grant of summary judgment in favor of Defendant

Wheeler.2

 The thrust of Nasious’s appellate argument is that the district court

failed to construe his pleadings liberally and failed to appoint counsel to represent

him. A review of the record reveals the district court did not abuse its discretion

by failing to appoint counsel. Neither did the court fail to construe Nasious’s

pleadings liberally. To the contrary, the court made extraordinary efforts to sort

through Nasious’s claims. As the district court noted, a plaintiff’s “pro se status

does not relieve him of the obligation to comply with” the Federal Rules of Civil

Procedure. Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir.

2002). Because Nasious failed to respond to Wheeler’s motion for summary

judgment, the court properly accepted the factual statements set out in Wheeler’s

declaration as true. The record confirms that those facts do not support a due

process or equal protection violation. The uncontested facts show that all

consequences stemming from the filing of the detainer were caused by Nasious’s

own actions. 

Appellate Case: 09-1422 Document: 01018370052 Date Filed: 02/19/2010 Page: 4
-5-

The district court’s grant of Wheeler’s motion for summary judgment is

affirmed for substantially the reasons stated in the Report and Recommendation

dated January 27, 2009, and the Order dated August 5, 2009. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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