956 F2d 278 Summers v. W Deland 1-6

956 F.2d 278

Steven V. SUMMERS, Plaintiff-Appellant,
v.
Gary W. DELAND, Gerald Cook, John Does 1-6, Captain Tom Bona
and Richard Fischer, Defendants-Appellees.

No. 91-4128.

United States Court of Appeals, Tenth Circuit.

Feb. 6, 1992.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before LOGAN, Circuit Judge, BARRETT, Senior Circuit Judge, and EBEL, Circuit Judge.*

ORDER AND JUDGMENT**

EBEL, Circuit Judge.


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1

Appellant Summers appeals the district court's granting of summary judgment to the appellees on his claim arising under 42 U.S.C. § 1983. Because we conclude that the district court correctly granted summary judgment, we will affirm.

2

The appellant was a prisoner in Utah State Prison when he originally filed his complaint; he has since been released. Although the appellant based his complaint on several grounds, the only issue raised on appeal is that prison officials violated the appellant's civil rights by opening his privileged and nonprivileged mail.

3

As noted by the district court, the opening of nonprivileged mail does not violate the prisoner's constitutional rights if necessary to protect any of several valid government interests. Procunier v. Martinez, 416 U.S. 396, 413 (1973). The appellant also alleged in his complaint that one defendant opened a privileged letter. This defendant denied this allegation in a sworn affidavit. The appellant offered no evidence to challenge the affidavit. Therefore, for substantially the reasons articulated by the district court in its Memorandum Decision of July 1, 1991, summary judgment was appropriate. See Fed.R.Civ.P. 56(e).

4

Finding no error in the district court's granting of summary judgment, we AFFIRM the district court.1 The mandate shall issue forthwith.

*

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); 10th Cir.R. 34.1.9. Therefore, the case is ordered submitted without oral argument

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

1

We deny the appellees' request for attorney fees and costs