* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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 5 TH C IR . 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., Plaint iff- Appellant,
versus BRYAN COLLIER, RISSIE OWENS, JUANITA GONZALES Defendants-Appellees.
Appeals from the United States District Court fo r the Western District of Texas (No. 1:05-CV-677)
Before REAVLEY, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Russell Ol stad challenges the constitutionality of the Texas parole statutes insofar as they applied to him, a challenge th at 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 fo llo wing reasons, we reverse.1 Olstad init ally filed a 60(b) mo tion because he believed th at his mo tion would not be filed

wit hin 10 days of entry of judgment. 2

I. FACTUAL AND PROCEDURAL BACKGROUND Olstad is a Texas state pri soner serving a life sent ence 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 th at amendments to the Texas Parole statutes
amo unted 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 th at vio lent of fenders were serving significant ly mo re of their sentences now than they were around the time he was convicted. The magistrate judge recom mended th at the district court dismiss the case fo r failure to state
a claim on which relief can be granted because Olstad had not specified which changes in parole pol icy 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’s report and requested further discovery, arguing th at he could not make specific arguments regarding the Texas amendments or Board pol icies because the y 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’s report, and dismissed Olstad’s suit, denying his request fo r discovery as well. Olstad filed a FE D . R.C IV . P. 60(b)
mo tion to reconsider, arguing th at he had just received new evidence from a Freedom of Information Act request. Olstad’s 60(b) motion should be co nstrued as a FE D . R.C IV . P. 59(e) mo tion to reconsider because it was filed wit hin 10 days of entry of judgment. 1 Olstad appeals the dismissal of3

his suit and the denial of his motion to reconsider.

II. STANDARD OF REVIEW D ismissals fo r failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) are reviewed de
novo. H arris v . Hegmann , 198 F.3d 153, 156 (5th Cir. 1999). Denials of FE D . R. C IV . P. 59
mo tions are reviewed fo r abuse of discretion. G ov’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 plaint iff’s com plaint , courts must construe the plaint iff’s allegations liberally. H

aines v. Kerner , 404 U.S. 519, 520 (1972). Pro se status does not give plaintiffs a prerogative to file merit less claims. S ee 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 “frivo lo us or malicio us.” 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 th at it was wit hout merit , stating th at he faile d to “ specify what changes in parole policies he is challenging” and th at “[Olstad is] simply dissatisfied th at vio lent of fenders are being required to serve
a greater percentage of their sentences before being released to parole.” O lstad v. Collier , No. A-05- CA-677-LY (W.D. Tex. Sept. 12, 2005) (order recommending dismissal). Dismissing Olstad’s claim fo r failure to state a claim was an abuse of discretion. Under § 1915, Olstad did s ufficient ly allege a claim upon which relief could be granted. Section V of the Western District of Texas § 1983 fo rm inst ructs plaint iffs to give in a “short and plain statem ent the facts of your case.” Additionally, the same fo rm provides, “You need not give any legal arguments4

or cit e any cases [or] statutes.” In response, Olstad wrote “Each defendant has ret roactively implement ed or applied a law, rule or pol icy which did not exist at the ti me of Plaintiff’s crime to substantially increase Plaint iff’s ri sk of greater punishment or lo nger incarceration in vio lat io n of the Ex Post Facto Clause of the Unit ed States Consti tution. More info rmation is set forth in the pages attached to thi s com

plaint .” 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 th at the ex post facto inquiry fo r state parole statute challenges is highly fact int ensive. “[T]he respondent m ust demonstrate, by evidence drawn from the rule's practical implement ation by the agency charged wit h exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” I d
. at 255. Accordingly, Olstad attached stati stics to his com plaint , which purportedl

y supported his allegations th at changes in the Texas parole statutes resulted in longer incarceration. This court has encouraged the district courts to flesh out the conclusory statem ents in pro se pleadings, using int errogatories as well as evidentiary hearings to do so, prior to deciding whether the pri soner can state a claim to sati sfy Rule 12(b)(6). G reen , 788 F.2d at 1119. Section 1915 does not give pro se litigants free rein to file frivo lo us suits, s ee Farguson , 808 F.2d at 359; however, it is not always easy to determ ine whether a claim is frivo lo us simp ly by examining the pleadings. Pri soner com

plaint s are notoriousl

y difficult to deci

pher, 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 th oroughl y until com pletely sati sfied eit her of it s merit or lack of same.’” 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 his init ial com plaint
. The report states that Ol stad “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 th ough Olstad alleged in Section V of his init ial com plaint th at “[e]ach defendant has retroactively implement ed or appl ied a law
. . . to substantially increase Plaint iff’s ri sk of
. . . lo nger incarceration . . . .” Additionally, if Olstad’s lack of specificit y 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 t o specify precisely which statutes he challenged
even th ough Olstad stated in his init ial co mplaint th at the Texas statutes were “inaccessible.” In his objections to the magistrate judge’s repo rt, Ol stad elaborated, stating that the statutes were inaccessible because they were not in t he prison library. We emphasize th at to be entitled to relief, Olstad must prove, under Garner, th at retroactively applied amendments to parole statutes or pol icies have caused a ‘significant ri sk of prolonging [Ol stad]’s incarceration.’ 529 U.S. at 251. It is far from clear th at Olstad can meet this burden; however, it was error to dis miss Olstad’s appeal since he allegedly did not have access to the statutes and policies in question. For the fo regoing reasons, the judgment is vacated, and the case is remanded to the district court fo r proceedings not inco nsist ent wit h this opinio n. In doing so, we express no opinio n regarding the ultimate merits of the case. IV. CONCLUSION We VACATE the dismissal and REMAND for further proceedings.