F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 9 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
JACKIE DEE HUGHES,
Plaintiff - Appellant,
v. No. 02-4156
(Utah)
MICHAEL SIBBETTS, UTAH (D.C. No. 2:01-CV-924 K)
BOARD OF PARDONS, MICHAEL
O. LEAVITT; Governor of the State of
Utah in his individual and official
capacity; and UTAH STATE
LEGISLATURE,
Defendants - Appellants.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, 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
*
This order and judgment is not binding precedent except under the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.
therefore ordered submitted without oral argument.
Jackie Dee Hughes filed a pro se 42 U.S.C. § 1983 (2002) complaint.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 1 the district court dismissed the
complaint sua sponte and with prejudice for failure to state a claim upon which
relief can be granted. Mr. Hughes, still acting pro se, 2 appeals. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
Mr. Hughes is a state prisoner committed to Utah's Purgatory Correctional
Facility. He was committed on January 8, 1999, to a term of imprisonment of
fifteen years to life. On December 12, 2001, he filed a § 1983 complaint in the
United States District Court for the District of Utah against members of the Utah
Board of Pardons and Parole (Board), the Governor of Utah, and all members of
the Utah Legislature, in their official and individual capacities. He alleged that
Board practices relating to his term of imprisonment violated his due process
rights under the federal Constitution. 3 In particular, he complained of the manner
An action shall be dismissed if the court determines it fails to state a claim
1
upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii) (2002).
2
We liberally construe pro se pleadings. Ledbetter v. City of Topeka, 318
F.3d 1183, 1187 (10th Cir. 2003).
3
In his appellate brief, Mr. Hughes raises, for the first time, other
provisions of the federal Constitution he claims the Board violated. We will not
consider these issues separately, as they were not presented to the district court.
Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). In any
event, we construe all of Mr. Hughes’ federal claims on appeal from district court
to be subsumed under his due process challenge.
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in which the Board set hearing dates, 4 conducted parole hearings and granted
parole. He sought compensatory and punitive damages, together with injunctive
relief. The district court dismissed his complaint for failure to state a due process
claim, reasoning that he had no protected liberty interest in parole.
We review de novo. Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 806
(10th Cir. 1999). As with a dismissal under Fed. R. Civ. P. 12(b)(6), dismissal
under § 1915(e)(2)(B)(ii) is not proper “unless it appears beyond doubt that the
plaintiff can prove no set of facts” that would entitle him to the relief claimed.
Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (quotations and citations omitted).
Malek v. Haun is dispositive. 26 F.3d 1013 (10th Cir. 1994). There, we
held a prisoner committed under Utah law does not possess a protected liberty
interest in his parole under the due process clause of the Fourteenth Amendment.
Id. at 1016. Under no set of facts can Mr. Hughes prevail in his § 1983 suit
targeting Utah’s parole procedures. 5 Id. at 1015.
4
“The Board of Pardons and Parole shall determine within six months after
the date of an offender’s commitment to the custody of the Department of
Corrections . . . a date upon which the offender shall be afforded a hearing to
establish a date of release or a date for a rehearing, and shall promptly notify the
offender of the date.” Utah Code Ann. § 77-27-7(1) (2002).
5
We note “[t]he Utah Constitution grants due process protection for the
original parole grant hearing at which the board determines the predicted terms of
incarceration.” Malek, 26 F.3d at 1016 (citing to Labrum v. Utah State Bd. of
Pardons, 870 P.2d 902, 911 (Utah 1993)). However, “a violation of state law
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We also conclude Mr. Hughes’ appeal is frivolous. We adopt the reasoning
of the district court and DISMISS the appeal as frivolous. 6 With the dismissal of
this appeal, combined with the district court’s dismissal of his complaint with
prejudice for failure to state a claim upon which relief may be granted, Mr.
Hughes has accumulated two strikes under 28 U.S.C. § 1915(g). 7 Finally, we
deny Mr. Hughes’ motion to proceed with his appeal in forma pauperis (without
prepayment of fees or security therefor) under 28 U.S.C. § 1915(a)(1). Mr.
Hughes is reminded that he must pay the filing fee in full.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
alone does not give rise to a federal cause of action under § 1983.” Id.
6
We agree with the district court that Mr. Hughes’ Motion for Permissive
Joinder of Plaintiff is now moot with the dismissal of his claims.
7
“In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be granted
. . . .” 28 U.S.C. § 1915(g).
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