* This order and judgment is not binding precedent, except under the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. 

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 18 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HENRY J. SUAREZ,

Plaintiff-Appellant,

 v.

UTAH BOARD OF PARDONS &

PAROLE; MICHAEL LEAVITT;

UTAH STATE LEGISLATURE,

Defendants-Appellees.

No. 04-4222

(D.C. No. 2:01-CV-637-DAK)

(D. Utah)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
-2-

Plaintiff Henry J. Suarez is an inmate in the Utah state correctional system. 

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

Utah Board of Pardons and Parole (the Board). Suarez claims the district court

erred in determining that the correctional system provided adequate access to the

Federal Rules of Civil Procedure and that his failure to file a post-judgment

motion did not amount to excusable neglect. Because Suarez is proceeding pro

se, we construe his pleadings liberally. Ledbetter v. City of Topeka, 318 F.3d

1183, 1187 (10th Cir. 2003). Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm.

Background

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

Board violated his due process rights in connection with his parole hearing and

that officials of the Utah state government conspired to deny his due process

rights. In addition, he alleged that, when making parole decisions, the Board

discriminates on the basis of religion. The district court dismissed his claims

pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires a district court to dismiss

any claims in a prisoner’s in forma pauperis complaint which are frivolous,

malicious, or fail to state a claim upon which relief can be granted. 

Suarez appealed the district court’s ruling, and this court affirmed the

dismissal of his due process and conspiracy claims. See Suarez v. Utah Bd. of
1 Though the Board had not been served with process and was therefore not

yet technically a party in the district court, it submitted an account similar to a

Martinez report. See Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978)

(stating 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).

-3-

Pardons & Parole , No. 02-4162, 76 Fed. Appx. 230 (10th Cir. Aug. 29, 2003). 

With regard to his religious discrimination claim, a majority found Suarez had

presented sufficient facts in his appellate brief to demonstrate his claim was not

frivolous, but that he had failed to present these facts to the district court or to

file any post-judgment motion. Because it was uncertain whether he had access to

the Federal Rules of Civil Procedure (“Federal Rules”), the panel could not

determine whether Suarez’s failure to file a post-judgment motion was excusable. 

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

Suarez had access to the Federal Rules, specifically the text of Rules 59 and 60. 

Id. at 235. 

On remand, Suarez claimed the Federal Rules were not available to

inmates. The Board submitted a report in which it conceded that the Federal

Rules were not included in the collection of legal materials generally provided for

inmate use, which included only Utah law and the local federal district court

rules. 1

 It asserted, however, inmates may request copies of materials from the
2 We note that Suarez has attached documents to his appellate brief that were

not submitted to district court. This court does not consider such materials. See

(continued...)

-4-

contract attorneys who assist inmates with the filing of their complaints. Suarez 

had filed his complaint without consultation with the contract attorneys.

 Based on the parties’ submissions, the district court found that the Federal

Rules were not immediately available to inmates, but that they could be obtained

upon request. Accordingly, the district court concluded that Suarez had adequate

access to the Federal Rules and that his failure to file a post-judgment motion was

the result of either a conscious decision or inexcusable neglect. The court

reinstated its dismissal with prejudice of the religious discrimination claim. 

Discussion

On appeal, Suarez asserts that “[t]here is no requirement that an inmate

request all possible assistance or information that he may need at a lat[]er date for

redress of an injury that the inmate does not even know that has been inflicted

upon him.” Aplt. Br. at 2. To elaborate, Suarez claims that he had no

opportunity to request a copy of the Federal Rules from the contract attorneys

(who assist only through completion of an initial complaint), because he had

drafted his own filing. This argument is unavailing.

Suarez did not present any evidence in the district court contesting the

Martinez report’s assertions about the availability of contract attorneys. 2

 Instead,
2

(...continued)

Myers v. Oklahoma County Bd. of County Comm’rs , 151 F.3d 1313, 1319

(10th Cir. 1998). 

3 The district court also relied upon the Board’s statement that inmates may

obtain the Federal Rules through the paging system, which allows inmates to

submit a written request for supplementary legal materials. Suarez asserts that he

had not been informed of this system, thus disputing the Board’s contention that

he “was aware that he could file a [paging system] request for additional legal

materials.” Aplee. Br. at 5. We recognize that the parties’ positions present a

contested issue of fact. However, a review of the district court record reveals no

dispute on the availability of the contract attorneys. Thus, we need not address

the ramifications of the paging system, as it is immaterial to our resolution of the

appeal. Cf. Cooperman v. David , 214 F.3d 1162, 1164 (10th Cir. 2000) (“A mere

factual dispute” will not necessarily affect the propriety of summary judgment

because “[o]nly disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude entry of summary judgment.”). 

-5-

he argued about the legal consequences of the contractual limitations on their

services. Thus, we review the district court’s ruling de novo . Pierce v.

Underwood , 487 U.S. 552, 558 (1988). 3

“Prisoners have a fundamental constitutional right of access to the courts,

and must be provided with ‘adequate law libraries or adequate assistance from

persons trained in the law.’” United States v. Cooper, 375 F.3d 1041, 1051

(10th Cir.), cert. denied , 125 S. Ct. 634 (2004) (quoting Bounds v. Smith ,

430 U.S. 817, 828 (1977)). “[P]rovision of legal counsel is a constitutionally

acceptable alternative to a prisoner’s demand to access a law library.” Id. at

1051-52. Moreover, the “right of access does not require the state to supply legal

assistance beyond the preparation of initial pleadings in a civil rights action
-6-

regarding current confinement. . . . ” Carper v. DeLand , 54 F.3d 613, 617

(10th Cir. 1995). 

Suarez’s decision to forgo offered legal assistance at the initial pleading

stage meant that he lacked a copy of the Federal Rules. Nevertheless, actual

possession of the Federal Rules is not legally required. It is sufficient that

information on the rules is available from the contract attorneys, if requested at a

scheduled meeting. The district court properly addressed this court’s concern and

correctly concluded that Suarez had adequate access to the text of the Federal

Rules.

Accordingly, we see no abuse of discretion in the district court’s

determination that the failure to file a post-judgment motion amounted to

inexcusable neglect. See Searles v. Dechant , 393 F.3d 1126, 1130 (10th Cir.

2004) (applying the abuse-of-discretion standard to a ruling on excusable neglect,

in the context of an untimely notice of appeal). The judgment of the district court

is AFFIRMED. Suarez is reminded of his obligation to continue making

payments until the filing fee is paid in full.

Entered for the Court

Mary Beck Briscoe

Circuit Judge