                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 8 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 BRUCE R. LONGYEAR,

          Plaintiff-Appellant,

 v.                                                        No. 04-4029
                                                            (D. Utah)
 UTAH BOARD OF PARDONS &                           (D.Ct. No. 01-CV-408-PGC)
 PAROLE,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, 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 F ED . R. A PP . P. 34(a)(2); 10th Cir. R. 34.1.9(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          This order and judgment is not binding precedent except under the doctrines of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.
      Bruce Longyear, an inmate at the Purgatory Correctional Facility in Utah,

appeals the dismissal of his pro se 42 U.S.C. § 1983 civil rights claim against the

Utah Board of Pardon and Parole (the Board). 1 He claims the district court erred

in finding the prison provided adequate access to the Federal Rules of Civil

Procedure and concluding there was no excusable reason for his failure to file the

necessary post-judgment motions. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we AFFIRM.

                                     Background

      In 2001, Longyear filed a pro se 42 U.S.C. § 1983 complaint alleging the

Board violated his due process rights by holding his original parole hearing

without affording him notice or an opportunity to be heard. In addition, he

alleged the Board improperly determines parole on the basis of the particular

inmate’s religion. The district court, sua sponte, dismissed his due process claim

for failure to state a claim under the United States Constitution. It also dismissed

his religious discrimination claim as “clearly baseless.” See 28 U.S.C. §

1915(e)(2)(B)(I) (dismissal required if the action “is frivolous or malicious”).

      On his first appeal (Longyear I), he raised three issues, whether: (1) the

Board violated his due process rights when holding his original parole hearing;



      1
       We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).

                                           -2-
(2) the factual basis for his religious discrimination claim was sufficient; and (3)

Utah’s executive and legislative branches are conspiring to allow these violations

to continue. We affirmed the dismissal of Longyear’s due process and conspiracy

claims. See Longyear v. Utah Bd. of Pardons & Parole, No. 02-4159 (10th Cir.

June 5, 2003). Addressing his religious discrimination claim, a majority found

Longyear had presented sufficient facts in his appellate brief to demonstrate his

claim was not frivolous, but that he failed to present these facts to the district

court or to file any post-judgment motion. Consequently, the panel affirmed the

district court’s dismissal of his claim. Id.

      Longyear moved for rehearing, which the panel granted. It again denied his

due process and conspiracy claims. However, it was uncertain whether he had

access to the Federal Rules of Civil Procedure (“Federal Rules”), specifically,

Rules 59 and 60; if not, his failure to file post-judgment motions should be

excused. As a result, the panel remanded the case for a hearing and findings as to

whether Longyear had access to the Federal Rules. Longyear v. Bd. of Pardons &

Parole, No. 02-4159 at 3 (10th Cir. Aug. 29, 2003).

      On remand, Longyear offered two reasons why the district court should

allow him to amend his complaint to include facts alleged for the first time in the

Longyear I brief. First, he claimed the Federal Rules were not available in the

prison’s legal resources, which provided only Utah law and the local federal


                                          -3-
district court rules. Second, he asserts the packet of materials provided to

inmates who wish to file civil claims contained only the Rules of Practice for the

United States District Court for the District of Utah (“local rules”), and the

language in the local rules misled him into believing no other rules must be

consulted. From that, he argues he had a reasonable excuse for failing to file

post-judgment motions under the Federal Rules.

       In response, the Board submitted a Martinez report 2 in which it conceded

the Federal Rules were not immediately available at the prison facility. However,

it asserted Longyear had access to the Federal Rules through his ability to contact

persons trained in law and the availability of the Federal Rules, on request, from

at least two sources: (1) the contract attorneys for the Board; and (2) the Sheriff’s

Office of Washington County (“Sheriff’s Department”), the office responsible for

general prison services. The Martinez report included a letter written by the

contract attorneys and the affidavit of Mary Reep, a correctional officer for the

Sheriff’s Department in charge of supportive services.

       The contract attorneys’ letter listed each of Longyear’s requests for legal

assistance, the date it was received, and the date and substance of their response.


       2
         Even though the Board was technically not a party at this time, upon order of the
district court, it submitted a report addressing Longyear’s access to the Federal Rules of
Civil Procedure. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (the district
court may order the prison administration to submit a report to be included in the
pleadings in cases where a prisoner has filed suit alleging a constitutional violation).

                                            -4-
The letter indicates Longyear made five requests for copies of cases or articles

between April and July, 2001. In response to his requests, the contract attorneys

declined to provide copies of the requested materials, explaining their “contract

only provides for provision of cases pertinent to pleadings we may be assisting an

inmate with.” (R. Doc. 30, Ex. A at 1.) However, on several occasions they

listed the addresses of law libraries which provided copies for a nominal fee and

further suggested that Longyear submit a request to meet with a contract attorney

if he had any questions.

      Ms. Reep’s affidavit avers the Sheriff’s Department received and granted

Longyear’s request to use the “Law on Disk” program available to inmates. (R.

Doc. 30, Exhibit B at 2.) While the program is limited to Utah state law, she also

stated her office would have supplied Longyear a copy of the Federal Rules, but

he never requested a copy.

      Without further argument, the district court issued its ruling. It found that

although the Federal Rules were not directly available at the prison facility,

Longyear was aware he could have accessed additional legal materials through

outside sources. The district court rejected Longyear’s argument that he was

misled by the local federal district court rules, noting the references in the local

rules clearly indicated they were merely supplemental and such references should

have put Longyear on notice that he needed to request a copy of the Federal Rules


                                          -5-
for complete information with which to proceed. Accordingly, the district court

found Longyear had adequate access to the Federal Rules and his failure to

consult them was not otherwise excusable. As a result, it reinstated its dismissal

with prejudice of his religious discrimination claim. Longyear appeals.

                                 II. DISCUSSION

      Longyear repeats the arguments made in the district court. They may be

parsed into two categories. First, he argues the district court erred in finding he

had adequate access to the Federal Rules. Second, even if he had access, he

claims his failure to file post-judgment motions is due to excusable neglect. We

address each argument in turn.

A.    Access to Legal Materials

      Whether Longyear had access to the Federal Rules is a question of fact.

“Findings of fact, whether based on oral or documentary evidence, shall not be set

aside unless clearly erroneous.” F ED . R. C IV . P. 52(a). “A finding of fact is

clearly erroneous if it is without factual support in the record or if the appellate

court, after reviewing all the evidence, is left with a definite and firm conviction

that a mistake has been made.” Manning v. United States, 146 F.3d 808, 812

(10th Cir. 1998) (citation and quotation omitted).

      While the Supreme Court has acknowledged an inmates’s constitutional

right to access the courts, Bounds v. Smith, 430 U.S. 817, 828 (1977), the Court


                                          -6-
has also held Bounds does not establish an abstract right to a law library or legal

assistance. Lewis v. Casey, 518 U.S. 343, 351 (1996). Although providing access

to a law library is an acceptable means of effectuating the right of access to the

courts, Bounds did not “foreclose alternative means” to achieve access to the

court. Bounds, 430 U.S. at 830.

      On appeal, Longyear argues the district court failed to consider the time

constraints caused by prison procedures governing requests for legal materials.

According to Longyear, he had no reason to read Rule 59 until after the dismissal

of his claim. The prison procedures required all requests be made in writing and

allowed a five day response time to the written requests. Longyear reasons that

the eight to ten day delay in receiving a response prevented him from accessing

the Federal Rules within the ten day time frame for filing a motion under Rule 59,

and therefore, his access was inadequate. Unfortunately, Longyear did not

present this particular theory to the district court.

      It is clear in this circuit that absent extraordinary circumstances, we
      will not consider arguments raised for the first time on appeal. This
      is true whether an appellant is attempting to raise a bald-faced new
      issue or a new theory on appeal that falls under the same general
      category as an argument presented at trial. We have therefore
      repeatedly stated that a party may not lose in the district court on one
      theory of the case, and then prevail on appeal on a different theory.

McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (citations

and quotations omitted). In addition, the record is silent regarding the time

between a request and a response. Instead, the record evidence indicates that

                                           -7-
many of the contract attorney responses to Longyear’s requests were initiated the

same day they were received. Because this issue was not before the district court

and we do not consider factual allegations unsupported by the record, this

argument fails.

      Even if we were to consider his allegations, the ten-day time frame for

filing a Rule 59 motion is irrelevant to whether Longyear had access to the

Federal Rules. Longyear knew he needed the Federal Rules to supplement the

local rules long before the district court dismissed his claim. His allegation that

the local rules’ introductory comments and the specific commentary to Rules 59

and 60 misled him is belied by his earlier pleadings referencing the Federal Rules.

In September 2001, Longyear filed a motion to amend his complaint citing Rule

15 of the Federal Rules. Rule 15 is one of the many Federal Rules referred to in

the local rules with the same commentary found under Rule 59 and 60. 3 Thus,

Longyear knew the local rules merely supplemented the Federal Rules in 2001,

nearly a year before his claim was dismissed. Consequently, Longyear was aware


      3
        The local rules’ introductory comments inform the reader that “this packet
contains a complete set of the new rules.” Utah District Court Civil Rules (September 1,
1997). The specific commentary under Rule 59 and 60 states, “[t]here is no
corresponding local rule.” Id. at 14. Similarly, Rule 11 (Signing of Pleadings, Motions
and Other Papers; Representations to Court; Sanctions), Rule 12 (Defenses and
Objections - When and How Presented), Rule 13 (Counterclaim and Cross-Claim), Rule
15 (Amended and Supplemental Pleadings), Rule 17 (Parties Plaintiff and Defendant;
Capacity), Rule 19 (Joinder), Rules 27-36 (Discovery) comprise a list of only some of the
referenced Federal Rules with no corresponding local rule.

                                           -8-
his claims were governed by the Federal Rules long before Rule 59's ten-day time

restriction was at issue.

      We also reject Longyear’s assertion that the limited contractual obligations

of the contract attorneys prevented access to a copy of the Federal Rules. Not

only did he manage to find a copy of Rule 15, but he completely ignores the list

of law library addresses sent to him by the contract attorneys on April 9 and May

7, 2001. The attorneys advised Longyear the law libraries “could provide case

law at a nominal cost.” (R. Doc. 30.) Even assuming Longyear believed he could

not receive a copy of the Federal Rules from the contract attorneys or the

Sheriff’s Department (an attempt he never made), he clearly could have requested

a copy from a law library.

      In his final assault on the district court’s determination he had adequate

access to the Federal Rules, Longyear asserts the personnel at his facility and at

the Sheriff’s Department did not follow the procedures for providing legal

material. Again, this argument was not raised in the district court proceedings,

nor are the attachments to Longyear’s brief sufficient to support his factual

allegations. The record, as it exists, fully supports the district court’s

determination that Longyear had adequate access to the Federal Rules, including

Rules 59 and 60. We therefore find no error in the district court’s ruling.




                                          -9-
B.    Excusable Neglect

      In the alternative, Longyear contends that even if the materials were

available from an outside source, the confusion created by the local rules coupled

with a pro se plaintiff’s understandable difficulty in navigating the legal system

provides sufficient justification for his failure to request the Federal Rules. We

disagree.

      The district court’s finding as to the presence or absence of “excusable

neglect” will not be overturned “unless there has been a clear abuse of

discretion." United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004)

(examining excusable neglect in filing notice of appeal under F ED . R. A PP . P.

4(b)(1)(A)). Whether a failure to meet a deadline is “excusable” is an equitable

determination considering “the danger of prejudice to the [other party], the length

of the delay and its potential impact on judicial proceedings, the reason for the

delay, including whether it was within the reasonable control of the movant, and

whether the movant acted in good faith.” Pioneer Inv. Svcs. Co. v. Brunswick

Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993). We note that Longyear’s pro se

status does not excuse his obligation to comply with the requirements of the

Federal Rules of Civil Procedure. Ogden v. San Juan County, 32 F.3d 452, 455

(10th Cir. 1994) (“While we of course liberally construe pro se pleadings, an

appellant's pro se status does not excuse the obligation of any litigant to comply


                                         -10-
with the fundamental requirements of the Federal Rules of Civil and Appellate

Procedure.”). Although the possibility of prejudice to the Board and the potential

impact caused by Longyear’s delay is probably minimal, we cannot find an abuse

of discretion in the district court’s determination that the reason for delay and

Longyear’s absence of good faith outweigh these considerations.

      As discussed above, the record supports the district court’s finding that

Longyear should have been aware of the importance of the Federal Rules in

proceeding with his claim. While it may be arguable that the nuance of one rule

or procedure may cause confusion, Longyear’s disregard of the repeatedly

referenced Federal Rules can only be characterized as deliberate indifference.

      Moreover, Longyear concedes the contract attorneys offered to meet with

him. He argues their offer to meet is of no import because he had no assurance

“that a meeting would have any meaningful value[.]” (Appellant’s Br. at 15.) In

light of Longyear’s lamentations on the difficulties of pro se litigation, it appears

there is little doubt a meeting with an attorney would have been advantageous,

especially for advice on procedure. Longyear’s disinterest in seeking the offered

legal advice is a sound reason for the district court’s conclusion that his failure to

file a post-judgment motion was not excusable.




                                         -11-
The judgment of the district court is AFFIRMED.

                              Entered by the Court:

                              Terrence L. O’Brien
                              United States Circuit Judge




                               -12-
