* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 ci vil rights claim against the Utah Board of Pardons and Parole (the Board). Suarez claims the district court erred in determining that the correctional system p rovided adequate access to the Federal Rules of Civil Procedure and that his failu re 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 jurisdict ion 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 connectionwith his parole hearing and that officials of the Utah state government conspir ed to deny his due process rights. In addition, he alleged that, when making parole decisions, the Board discriminates on the basis of religion. The distri ct court dismissed his claims pursuant to 28 U.S.C. § 1915(e)(2)(B), which requir es 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 reli ef can be granted. Suarez appealed the district court’s ruling, and th is court affirmed the dismissal of his due process and conspiracy claims. See Suarez v. Utah Bd. of1 Though the Board had not been served with process and was therefore not

yet technically a party in the district court, it s ubmitted 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 ad ministration to submit a report to be included in the pleadings in cases where a priso ner 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 t o 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 unce rtain whether he had access to the Federal Rules of Civil Procedure (“Federal Rule s”), the panel could not determine whether Suarez’s failure to file a post-j udgment motion was excusable. As a result, the panel remanded the case for a hear ing and findings as to whether Suarez had access to the Federal Rules, specificall y the text of Rules 59 and 60. Id. at 235. On remand, Suarez claimed the Federal Rules were no t 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 lo cal federal district court rules. 1 It asserted, however, inmates may request copies of materials from the2 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 fili ng of their complaints. Suarez had filed his complaint without consultation with the contract attorneys. Based on the parties’ submissions, the district co urt found that the Federal Rules were not immediately available to inmates, but that they could be obtained upon request. Accordingly, the district court conc luded 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 inexcu sable neglect. The court reinstated its dismissal with prejudice of the reli gious discrimination claim.
Discussion On appeal, Suarez asserts that “[t]here is no requi rement that an inmate request all possible assistance or information thathe 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 c omplaint), because he had drafted his own filing. This argument is unavailin g. Suarez did not present any evidence in the districtcourt contesting the
Martinez report’s assertions about the availability of contract attorneys. 2Instead,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 disputin g 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 th e 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 attorne ys. Thus, we need not address the ramifications of the paging system, as it is im material 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 pr opriety of summary judgment because “[o]nly disputes over facts that might affe ct the outcome of the suit under the governing law will properly preclude entry of s ummary judgment.”). -5- he argued about the legal consequences of the contr actual 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 o r 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 c ounsel 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 r equire the state to supply legal assistance beyond the preparation of initial pleadi ngs 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 Ru les. Nevertheless, actual possession of the Federal Rules is not legally requ ired. It is sufficient that information on the rules is available from the contract attorneys, if requested at a scheduled meeting. The district court properly add ressed 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 d istrict court’s determination that the failure to file a post-judgm ent 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). T he 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