                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAR 20 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

MACHELL PHIBBS, on behalf of her
minor daughter and as best friend of
Nicolina Phibbs; NICOLINA PHIBBS,

             Plaintiffs - Appellants,

v.

AMERICAN PROPERTY
MANAGEMENT; PAUL TATUM,
Agent, American Property
Management; MELISSA
                                                 Nos. 02-4111 and 02-4212
SCHIMBECK, in both her capacity as
                                                 (D.C. No. 2:02-CV-260-S)
Assistant Manager and Manager of
                                                         (D. Utah)
Canyon Place/Rock Creek Apartment
Complex; JAMIE DALTON, Assistant
Manager of Canyon Place/Rock Creek
Apartment Complex; DAVID
GIBSON, Police Officer, St. George,
Utah Police Department; NELLIE
NOBLES, Tenant, Canyon Place/Rock
Creek Apartment Complex; SAMUEL
NOBLES, Tenant, Canyon Place/Rock
Creek Apartment Complex,

             Defendants - Appellees.


                          ORDER AND JUDGMENT *



      *
       This order and judgment is not binding precedent, except under the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.
Before KELLY, McKAY, and MURPHY, Circuit Judges.


      After examining Appellants’ briefs and the appellate record, this court 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.

      Proceeding pro se and in forma pauperis, Appellants Machell Phibbs and

Nicolina Phibbs (collectively “Appellants”) appeal the district court’s dismissal of

their complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Appellants also appeal

the district court’s denial of the motion they filed pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure. Appellants’ motion to consolidate their two

appeals is granted.

      The claims raised in Appellants’ complaint arise from a dispute over

handicapped parking at Appellants’ apartment complex. The defendants named in

the complaint include the corporation which owns the apartment complex, the

manager and assistant manager of the complex, several tenants, and a police

officer who responded to a disturbance at the complex. The district court

construed the complaint as alleging causes of action under 42 U.S.C. §§ 1983 and

1985(3). The court concluded that Appellants had failed to state claims upon

which relief may be granted and dismissed the complaint pursuant to 28 U.S.C. §

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1915(e)(2)(B). In reaching the determination that Appellants’ complaint should

be dismissed, the district court relied on Wilhelm v. Continental Title Co., a case

in which this court concluded that disabled persons do not constitute a class of

persons entitled to protection under 42 U.S.C. § 1985. See 720 F.2d 1173, 1175-

77 (10th Cir. 1983). In addition, the district court concluded that the complaint

did not allege any constitutional violation actionable under 42 U.S.C. § 1983.

      On appeal, Appellants assert that    the district court should have provided

them with an opportunity to amend their complaint to correct any deficiencies .

They also assert that their complaint contains additional claims under the

Americans with Disabilities Act and the Fair Housing Act and that the district

court erred when it dismissed the complaint without addressing those claims.

This court reviews a dismissal pursuant to § 1915(e)(2)(B)(ii)    de novo . See

Perkins v. Kan. Dep’t of Corr. , 165 F.3d 803, 806 (10th Cir. 1999). The     sua

sponte dismissal of a pro se complaint for failure to state a claim “is appropriate

only where it is patently obvious that the plaintiff could not prevail on the facts

alleged, and allowing [her] an opportunity to amend [her] complaint would be

futile.” Whitney v. New Mexico , 113 F.3d 1170, 1173 (10th Cir. 1997) (quotation

omitted). When reviewing the propriety of a dismissal for failure to state a claim,

this court must construe a   pro se litigant’s complaint liberally, must accept the

allegations in the complaint as true, and must construe the allegations and any


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reasonable inferences that might be drawn from them in the light most favorable

to the plaintiff.   See Gaines v. Stenseng , 292 F.3d 1222, 1224 (10th Cir. 2002).

       We conclude that the district court properly dismissed Appellants’ § 1983

and § 1985 claims. It is clear from our review of the record that Appellants

cannot prevail on the facts alleged in their complaint and allowing them the

opportunity to amend the compliant would be futile. Construing Appellants’

complaint liberally, however, we also conclude they raised claims arising under

both the Americans with Disabilities Act and the Fair Housing Act. The district

court erred when it dismissed Appellants’ complaint      sua sponte without any

discussion or analysis of those claims.

       Accordingly, the district court’s dismissal of Appellants’ § 1983 and §

1985 claims with prejudice is    affirmed . The court’s dismissal of the remaining

claims raised in Appellants’ complaint is      reversed and Appellants’ appeal from

the denial of their Rule 60(b) motion is dismissed as moot. 1 The matter is

remanded for further proceedings not inconsistent with this opinion.

                                            ENTERED FOR THE COURT



                                            Michael R. Murphy
                                            Circuit Judge


       Appellants did not challenge the dismissal of their § 1983 and § 1985
       1

claims in their Rule 60(b) motion.

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