*

Pursuant to 5

TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50099

RUSSELL NORMAN OLSTAD, JR.,

Plaintiff-Appellant,

versus

BRYAN COLLIER,

RISSIE OWENS,

JUANITA GONZALES

Defendants-Appellees.

Appeals from the United States District Court

for the Western District of Texas

(No. 1:05-CV-677)

Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Russell Olstad challenges the constitutionality of the Texas parole statutes insofar as they

applied to him, a challenge that stems from the Texas Parole Board’s (“Board”) denial of his parole

in 2004. The district court, sua sponte, dismissed Olstad’s suit for failure to state a claim. For the

following reasons, we reverse. 
1Olstad initally filed a 60(b) motion because he believed that his motion would not be filed

within 10 days of entry of judgment.

2

I. FACTUAL AND PROCEDURAL BACKGROUND

Olstad is a Texas state prisoner serving a life sentence for a 1984 murder conviction, which

he received as a result of a plea bargain. In 2004, Olstad became eligible for parole and was denied.

He sued the Board under 42 U.S.C. § 1983, alleging that amendments to the Texas Parole statutes

amounted to an ex post facto extension of his sentence. He attached to his complaint a state report

and a separate article to support his argument that violent offenders were serving significantly more

of their sentences now than they were around the time he was convicted. 

The magistrate judge recommended that the district court dismissthe case for failure to state

a claim on which relief can be granted because Olstad had not specified which changes in parole

policy he was challenging. The magistrate judge also pointed out that Olstad had not sufficiently

alleged an increase in sentence. 

Olstad objected to the magistrate judge’sreport and requested further discovery, arguing that

he could not make specific arguments regarding the Texas amendments or Board policies because

they were not available in the prison law library. In his objections, he also argued that the Texas

parole statutes had been amended 50 times since 1984, citing a statutory pocket part. 

The district court overruled Olstad’s objections, approved the magistrate judge’sreport, and

dismissed Olstad’ssuit, denying hisrequest for discovery as well. Olstad filed a FED. R.CIV. P. 60(b)

motion to reconsider, arguing that he had just received new evidence from a FreedomofInformation

Act request. Olstad’s 60(b) motion should be construed as a FED. R.CIV. P. 59(e) motion to

reconsider because it was filed within 10 days of entry of judgment.1 Olstad appeals the dismissal of
3

his suit and the denial of his motion to reconsider. 

II. STANDARD OF REVIEW

Dismissals for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) are reviewed de

novo. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). Denials of FED. R. CIV. P. 59

motions are reviewed for abuse of discretion. Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place,

Inc., 62 F.3d 767, 774 (5th Cir. 1995). 

III. DISCUSSION

When reviewing a pro se plaintiff’s complaint, courts must construe the plaintiff’s allegations

liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se status does not give plaintiffs a

prerogative to file meritless claims. See Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359 (5th

Cir. 1986). Under 28 U.S.C. § 1915(e), courts can sua sponte dismiss pro se suits if the claims are

“frivolous or malicious.” See Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). The

magistrate judge’s report, which the district court adopted, dismissed Olstad’s suit on the basis that

it was without merit, stating that he failed to “specify what changes in parole policies he is

challenging” and that “[Olstad is]simply dissatisfied that violent offenders are being required to serve

a greater percentage oftheirsentences before being released to parole.” Olstad v. Collier, No. A-05-

CA-677-LY (W.D. Tex. Sept. 12, 2005) (order recommending dismissal). 

Dismissing Olstad’s claim for failure to state a claim was an abuse of discretion. Under §

1915, Olstad did sufficiently allege a claim upon which relief could be granted. Section V of the

Western District of Texas § 1983 form instructs plaintiffs to give in a “short and plain statement the

facts of your case.” Additionally, the same form provides, “You need not give any legal arguments
4

or cite any cases [or] statutes.” In response, Olstad wrote “Each defendant has retroactively

implemented or applied a law, rule or policy which did not exist at the time of Plaintiff’s crime to

substantially increase Plaintiff’srisk of greater punishment or longer incarceration in violation of the

Ex Post Facto Clause of the United States Constitution. More information is set forth in the pages

attached to this complaint.” Id. 

Even if Olstad’s claim was marginal, his reply was sufficient. In Garner v. Jones, 529 U.S.

244 (2000), the Supreme Court stated that the ex post facto inquiryforstate parole statute challenges

is highly fact intensive. “[T]he respondent must demonstrate, by evidence drawn from the rule's

practical implementation by the agency charged with exercising discretion, that its retroactive

application will result in a longer period of incarceration than under the earlier rule.” Id. at 255.

Accordingly, Olstad attached statisticsto his complaint, which purportedly supported his allegations

that changes in the Texas parole statutes resulted in longer incarceration. 

This court has encouraged the district courts to flesh out the conclusory statements in pro se

pleadings, using interrogatories as well as evidentiary hearings to do so, prior to deciding whether

the prisoner can state a claim to satisfy Rule 12(b)(6). Green, 788 F.2d at 1119. Section 1915 does

not give pro se litigants free rein to file frivolous suits, see Farguson, 808 F.2d at 359; however, it

is not always easy to determine whether a claim is frivolous simply by examining the pleadings.

Prisoner complaints are notoriously difficult to decipher, and pro se pleadings must be construed

liberally. See Haines, 404 U.S. at 520. “Unless the frivolousness of a claim is facially apparent, it

is ‘incumbent upon the court to develop the case and to sift the claims and known facts thoroughly

until completelysatisfied either ofits merit or lack ofsame.’” Green, 788 F.2d at 1120 (quoting Jones

v. Bales, 58 F.R.D. 453, 464 (N.D. Ga. 1972)), aff'd, 480 F.2d 805 (5th Cir. 1973). 
5

Not only did the magistrate judge’s report fail to construe Olstad’s claim liberally, it was

directly contradicted by hisinitial complaint. The report states that Olstad “does not appear to allege

any such changes have adversely affected his punishment, i.e., they do not increase the length of the

sentence” even though Olstad alleged in Section V of his initial complaint that “[e]ach defendant has

retroactively implemented or applied a law . . . to substantially increase Plaintiff’s risk of . . . longer

incarceration . . . .” 

Additionally, if Olstad’s lack of specificity in regard to the Texas statutes was a basis for

dismissal, the district court should have at least addressed his claims regarding the law library. The

magistrate judge’s report stated that Olstad failed to specify precisely which statutes he challenged

even though Olstad stated in his initial complaint that the Texas statutes were “inaccessible.” In his

objections to the magistrate judge’s report, Olstad elaborated, stating that the statutes were

inaccessible because they were not in the prison library. We emphasize that to be entitled to relief,

Olstad must prove, under Garner, that retroactively applied amendmentsto parole statutes or policies

have caused a ‘significant risk of prolonging [Olstad]’sincarceration.’ 529 U.S. at 251. It is far from

clear that Olstad can meet this burden; however, it was error to dismiss Olstad’s appeal since he

allegedly did not have access to the statutes and policies in question.

For the foregoing reasons, the judgment is vacated, and the case is remanded to the district

court for proceedings not inconsistent with this opinion. In doing so, we express no opinion regarding

the ultimate merits of the case.

IV. CONCLUSION

We VACATE the dismissal and REMAND for further proceedings.