UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

DELMART E.J.M. VREELAND, II, 

 Plaintiff - Appellant, 

v. 

CELIA SCHWARTZ, Legal Assistant II, 

Colorado Department of Corrections, 

Buena Vista Correctional Facility; 

COLORADO DEPARTMENT OF 

CORRECTIONS, 

 Defendants - Appellees. 

No. 14-1241 

(D.C. No. 1:13-CV-03515-LTB) 

(D. Colo.)

 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 26, 2015

Elisabeth A. Shumaker 

Clerk of Court

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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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