                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                             June 5, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-3275
                                                  (D.C. No. 6:12-CR-10174-JTM-1)
PHILIP ANDRA GRIGSBY,                                         (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Philip Grigsby, a federal prisoner proceeding pro se,1 appeals the district

court’s order denying his request to modify an order prohibiting him from contacting

his children. We conclude that the district court acted well within its discretion.

Accordingly, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
      1
        We liberally construe pro se pleadings, but we won’t act as Grigsby’s
advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                     Background

      Grigsby pleaded guilty in 2013 to nine charges related to the production and

possession of child pornography and one charge of being a felon in possession of a

firearm. The district court sentenced Grigsby to 260 years in prison. At the request of

their mother, the district court included two separate provisions in its judgment

prohibiting Grigsby from contacting his two children—one of whom was a victim of

Grigsby’s crimes. The district court imposed one of these provisions as a special

condition of supervised release and the other as a standalone order accompanying

Grigsby’s prison sentence.

      On direct appeal, Grigsby only challenged the substantive reasonableness of

his sentence. We affirmed. See United States v. Grigsby, 749 F.3d 908, 908–09 (10th

Cir. 2014). Grigsby has since unsuccessfully filed multiple 28 U.S.C. § 2255 motions

to vacate his sentence. See United States v. Grigsby, 715 F. App’x 868, 869 (10th

Cir. 2018) (unpublished). Late last year, Grigsby filed a motion in district court

requesting that it modify the order preventing him from contacting his children while

in prison. Grigsby explained that he was five years into his sentence and had

completed a number of psychological, vocational, and religious programs. In light of

his progress, he asked the district court to modify the order to allow him to

communicate with his children under the Bureau of Prison’s supervision.

      The district court commended Grigsby on his progress but concluded that it

wasn’t “appropriate to remove the no[-]contact order.” R. 94. The district court

elaborated that Grigsby didn’t “present any evidence that his participation in the

                                           2
programs [was] to the point where his treatment providers [were] recommending

contact with his children.” Id. Moreover, it explained that Grigsby didn’t “present

any information showing that contact with his children would be in their best

interest.” Id. Grigsby appeals.

                                        Analysis

      Initially, to ensure that the district court had jurisdiction to hear Grigsby’s

motion to modify, we must resolve how to classify that motion. The district court

didn’t specify how it interpreted the motion, but the parties treat it as a motion to

modify Grigsby’s conditions of supervised release. See 18 U.S.C. § 3583(e). Yet

Grigsby makes clear in his motion and his briefing on appeal that he’s challenging

the district court’s order that he not contact his children while in custody—that is,

he’s challenging the district court’s standalone order instead of the condition of

supervised release. And because the plain language of § 3583 deals only with

conditions of “supervised release after imprisonment,” it doesn’t govern the no-

contact order that Grigsby challenges. § 3583 (emphasis added).

      As this is not a § 3583 motion, it must be one of two things: (1) a second or

successive § 2255 motion, or (2) a Federal Rule of Civil Procedure 60(b) motion

seeking relief from a civil judgment. We conclude that Grigsby’s motion is the latter.

The district court’s no-contact order is a civil injunction pursuant to its ancillary

jurisdiction—not a part of Grigsby’s sentence that he must attack under § 2255.2 See


      2
         If the motion were the former, then the district court would have lacked
jurisdiction to rule on it because Grigsby didn’t seek our permission to file a second

                                            3
United States v. Morris, 259 F.3d 894, 900–01 (7th Cir. 2001) (upholding order

forbidding defendant from contacting child victim as exercise of district court’s

inherent power to protect administration of justice in criminal matters); cf. United

States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir. 1987) (explaining that district

courts exercising criminal jurisdiction have ancillary jurisdiction over the “case or

controversy in its entirety”). Accordingly, we read Grigsby’s motion as a motion for

relief from judgment pursuant to Rule 60(b)(5), which allows relief from a judgment

when “applying it prospectively is no longer equitable.” See United States v.

Holland, 214 F.3d 523, 526 (4th Cir. 2000) (explaining ancillary motion in criminal

case should be treated as civil if it concerns private injury instead of guilt and

punishment); cf. United States v. Morales, 807 F.3d 717, 722 (5th Cir. 2015) (treating

criminal defendant’s post-conviction motion to modify discovery protection order as

civil motion for purpose of Federal Rule of Appellate Procedure 4).

      We review the denial of a Rule 60(b) motion for abuse of discretion and

reverse only “if a definite, clear[,] or unmistakable error occurred below.” Jackson v.

Los Lunas Cmty. Program, 880 F.3d 1176, 1191 (10th Cir. 2018) (quoting Zurich N.

Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)). Grigsby first argues

that the district court should have granted him relief because he has made substantial

progress towards his rehabilitation in prison. We cannot conclude that the district

or successive § 2255 motion. See § 2255(h); In re Cline, 531 F.3d 1249, 1251 (10th
Cir. 2008) (“A district court does not have jurisdiction to address the merits of a
second or successive § 2255 . . . claim until this court has granted the required
authorization.”).


                                            4
court unmistakably erred when it determined that Grigsby’s progress doesn’t warrant

modifying the no-contact order. Given the severity of Grigsby’s crimes,3 it was

reasonable for the district court to require more concrete evidence that contact

between Grigsby and his children would be in the children’s best interest before

modifying the no-contact order.4

      Grigsby next argues that the no-contact order is an unconstitutional restraint

on his right to familial association. But Rule 60(b) affords him no relief on that

ground. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)

(explaining that Rule 60(b) relief may not be granted on arguments and supporting

facts available at time of judgment). Grigsby should have raised this argument on

direct appeal. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.

2000) (“A Rule 60(b) motion is not intended to be a substitute for a direct appeal.”).5

      Grigsby also argues that his mother has been prevented from seeing his

children (her grandchildren). But the district court didn’t unmistakably err by

      3
         In affirming Grigsby’s sentence on direct appeal, “[w]e decline[d] to recount
the heinous facts underlying [his] convictions.” Grigsby, 749 F.3d at 909 n.2. We
likewise decline to do so here. But we note that the district court gave Grigsby the
statutory maximum prison sentence “because, among other things, his crimes
involved (1) a family member who had not attained the age of twelve years and
(2) material that portrayed sadistic or masochistic conduct or other depictions of
violence.” Id. at 909 & n.2.
       4
         Even if we interpreted this as a § 3583(e) motion, we would agree with the
government that the district court didn’t abuse its discretion and reach the same
conclusion. See United States v. Begay, 631 F.3d 1168, 1170 (10th Cir. 2011)
(reviewing § 3583(e) motion for abuse of discretion).
       5
         As the government argues, Grigsby also couldn’t raise this argument in a
§ 3583(e) motion. See United States v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997)
(holding that legality of condition of supervised release may only be challenged on
direct appeal or as collateral attack under § 2255).

                                           5
declining to amend the no-contact order on these grounds. The no-contact order only

applies to Grigsby—not his mother. Thus, this alleged inequity doesn’t stem from the

district court’s order, and modifying the order wouldn’t alleviate it. Accordingly, we

affirm the district court’s order denying Grigsby’s request to modify the no-contact

order.

         As a final matter, Grigsby asks us in his reply brief to strike the government’s

brief because it includes a statement of the issues, a statement of the case, and a

statement of the standard of review, all of which Grigsby says are unnecessary under

Federal Rule of Appellate Procedure 28. See Fed. R. App. P. 28(b) (specifying that

appellees’ briefs need not contain statements of issues, case, or standard of review

“unless the appellee is dissatisfied with the appellant’s statement”). We interpret

Grigsby’s reply brief as a motion to strike, which we deny. Rule 28(b) merely

clarifies that appellees aren’t required to include these statements in their briefs; it

doesn’t forbid them from doing so.




                                              Entered for the Court


                                              Nancy L. Moritz
                                              Circuit Judge




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