Greathouse v. Sibbett

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 28 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICKY GREATHOUSE,
Plaintiff-Appellant,
v. No. 02-4041
(D.C. No. 2:01-CV-798-C)
MICHAEL R. SIBBETT, Member of (D. Utah)
the Utah Board of Pardons and Parole,
in his individual capacity; MICHAEL
O. LEAVITT, Governor, State of
Utah, in his individual capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Ricky Greathouse appeals the district court’s dismissal of his civil rights
complaint alleging that (1) the Utah Board of Pardons and Parole (Board) violated
his federal due process rights by holding an original parole hearing to determine
the length of his sentence without giving him notice of, or an opportunity to be
heard or present at, the hearing; (2) the procedures used by the Board generally in
making parole decisions violate the requirements of due process; (3) the Governor
and the Utah State Legislature have conspired to deny Mr. Greathouse’s due
process rights by failing to properly oversee the Board’s operation and correct the
unconstitutional procedures; and (4) the Board discriminates on the basis of
religion when making parole decisions. The district court dismissed the
complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B).
Mr. Greathouse contends that it was error for the district court to dismiss his
claims. We affirm in part and reverse in part the district court’s order of
dismissal and remand the matter for further proceedings.
This case is in all material aspects virtually identical to two earlier
decisions of this court, Suarez v. Utah Board of Pardons & Parole , No. 02-4162,
2003 WL 22046122 (10th Cir. Aug. 29, 2003), and Longyear v. Utah Board of
Pardons & Parole , 68 Fed. Appx. 878 (10th Cir. June 5, 2003), reh’g granted
in part , No. 02-4159, 2003 WL 22046101 (10th Cir. Aug. 29, 2003), whose
reasoning we expressly adopt. We conclude that the district court’s dismissal of
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the due process and conspiracy claims was proper. We further determine, as
expressed in Suarez , that petitioner has made additional factual allegations in his
pro se brief which might have enabled him to amend his complaint to state
a claim for religious discrimination. Suarez , 2003 WL 22046122, at *3.
Like the petitioners in Longyear and Suarez , Mr. Greathouse did not file a
post-judgment motion for relief under Fed. R. Civ. P. 59(e) or 60(b). We have
remanded both Longyear and Suarez in order for the district court to determine
whether these petitioners in fact had access to the Federal Rules of Civil
Procedure, a course we likewise follow here.
Accordingly, we reverse the district court’s dismissal of Mr. Greathouse’s
religious discrimination claim and remand this cause to the district court for
further proceedings to determine whether he had access to the Federal Rules of
Civil Procedure, and specifically Rules 59 and 60. If the district court finds that
Mr. Greathouse did not have access to those rules, then the court should conclude
that his failure to make post-judgment motions seeking leave to amend his
religious discrimination claim is excused. In that case, the district court should
permit Mr. Greathouse to replead his religious discrimination claim with greater
specificity. If, however, the district court finds that Mr. Greathouse did have
access to Rules 59 and 60, the court may reenter an order dismissing the religious
discrimination claim with prejudice.
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We AFFIRM the district court’s dismissal of Mr. Greathouse’s
due process and conspiracy claims. We REVERSE the district court’s dismissal
of Mr. Greathouse’s religious discrimination claim and REMAND to the district
court for proceedings consistent with this order and judgment. We GRANT
Mr. Greathouse’s motion to proceed without prepayment of costs and fees, and he
is reminded that he is obligated to continue making payments until the filing fee
is paid in full.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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