                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 23 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 WILLIE T. HAYES,

          Plaintiff-Appellant,

 v.

 MAJOR MARRIOTT; MAJOR
 SOARES; RICHARD MARR,
                                                       No. 00-1090
 Assistant Superintendent and the
                                                   (D.C. No. 91-Z-1344)
 members of the Special Operations
                                                        (Colorado)
 Response Team of January 24, 1991;
 WILLIAM E. PRICE, Superintendent;
 MICHAEL LURANT; GLADYS
 SHOCKLEY, Seargent; TED
 ADAMIC, Officer; PERRY ROEKER;
 GERALD GASKO,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, EBEL, and BRISCOE, Circuit Judges.

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
      In this proceeding we are once again called upon to review the dismissal of

this pro se state prisoner’s civil rights complaint. Willie T. Hayes originally

brought this action in 1991, alleging that his Fourth Amendment rights were

violated when he was subjected to a strip search in the presence of female

corrections officers and several nonessential prison personnel. Following the

preparation of a report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir.

1978) (en banc) (per curiam), the district court adopted the recommendation of a

magistrate judge and dismissed the claim. This court reversed and remanded for

further proceedings. See Hayes v. Marriott, 70 F.3d 1144 (10th Cir. 1995).

      Upon remand, a magistrate judge issued a recommendation finding that the

strip search violated Mr. Hayes right to bodily privacy under the Fourth

Amendment, but that the defendants named in the complaint did not participate in

the search and that the illegal search was in fact carried out by unnamed and

unknown members of a Special Operations Response Team. The district court

adopted the report in part, dismissing the action but ordering defendants to

identify the Team members and granting Mr. Hayes leave to file a new action

against those defendants. Mr. Hayes appealed once again. We affirmed in part

and remanded for further proceedings, holding that rather than requiring Mr.

Hayes to file a new lawsuit, the court should have allowed him to file an amended

complaint in the same action once the officers had been identified. See Hayes v.

                                         -2-
Marriott, No. 99-1051, 1999 WL 791146 (10th Cir. Oct. 5, 1999).

       Following the entry of this order and judgment in the district court record is

a copy of a document titled General Release of All Claims, which appears to be a

copy of a form release executed by Mr. Hayes before a notary. In the document

Mr. Hayes agrees to release all claims against defendant Team members in the

underlying lawsuit “FOR AND IN CONSIDERATION of the sum of

Dollars and no/100 (1000.00).” Rec., vol. II at 138. However, neither party filed

a motion informing the court that the suit had been settled and formally

requesting dismissal. Nevertheless, the district court entered an order stating that

it appeared the issues had been resolved, treating the release as a motion to

dismiss and dismissing the complaint and cause of action with prejudice. Id. at

139.

       Mr. Hayes again appeals, contending that the release he filed was only an

offer to settle the claims for $1000, that he had not filed a motion to dismiss, and

that the court erred in summarily dismissing his action. Defendants filed no

response either in district court or on appeal.

       While the district court may not have been unreasonable in assuming that

the general release indicated the suit had been settled, it appears this assumption

was in error in view of defendants’ failure to dispute Mr. Hayes’ assertion that the

“General Release” was intended by him only as an offer to settle. Under these


                                         -3-
circumstances, we are persuaded Mr. Hayes’ action should be reinstated.

Accordingly, the case is REVERSED and REMANDED for further proceedings. 1

                                     ENTERED FOR THE COURT


                                     Stephanie K. Seymour
                                     Chief Judge




      The order assessing fees is vacated. In view of the circumstances, the
      1

payment of appellate fees is waived.

                                       -4-
