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      This order and judgment is not binding precedent, except under the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