* After examining appellants’ 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); 10th Cir. R. 34.1(G). 

The case is therefore ordered submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, and collateral estoppel. It may be cited, however, for its persuasive

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

March 15, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DARRELL ELLIS; LARRY

CHANEY; ROY GENE

EASTERWOOD; ARLEY LEE

DUNCAN,

Plaintiffs-Appellants,

v.

JAMES M. BROWN, SR., Oklahoma

Pardon and Parole Board; CLINTON

JOHNSON, Oklahoma Pardon and

Parole Board; RICHARD DUGGER,

Oklahoma Pardon and Parole Board;

SUSAN B. LOVING, Oklahoma

Pardon and Parole Board; LYNNELL

HARKINS, Oklahoma Pardon and

Parole Board; TERRY JENKS,

Director, Oklahoma Pardon and Parole

Board; BRET T. BURNS, District

Attorney; DAVID W. PRATER,

District Attorney; BRAD HENRY,

Governor of Oklahoma,

Defendants-Appellees.

No. 09-6115

(D.C. No. 5:09-CV-00379-R)

(W.D. Okla.)

ORDER AND JUDGMENT*

Appellate Case: 09-6115 Document: 01018383989 Date Filed: 03/15/2010 Page: 1
*

(...continued)

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1

 Mr. Easterwood also alleged that the Governor of Oklahoma violated mandatory

parole procedures in denying him parole after the Parole Board recommended his

release. This claim, however, “is not cognizable under § 1983.” Reed v.

McKune, 298 F.3d 946, 953 (10th Cir. 2002). 

-2-

Before GORSUCH, Circuit Judge, and ANDERSON and BRORBY,

Senior Circuit Judges.

Darrell Ellis, Larry Chaney, Roy Gene Easterwood, and Arley Lee Duncan

were convicted of murder in Oklahoma state court and sentenced to life

imprisonment. After they sought and were denied parole, they brought this suit

pro se, under 42 U.S.C. § 1983, alleging essentially two things: (1) the

defendants conspired to deprive them of their constitutional rights in the parole

process, and (2) Oklahoma’s parole procedures violate the federal Due Process

and Ex Post Facto Clauses.1

 The district court dismissed the suit and the

plaintiffs, now proceeding through counsel, brought this appeal.

Reviewing the dismissal of the conspiracy claims de novo, we affirm for

substantially the reasons given by the magistrate judge and district court. Even

affording the complaint as liberal a reading as possible, we discern no reversible

error in the district court’s disposition and see nothing we might usefully add to

what that court and the magistrate have already said.

Appellate Case: 09-6115 Document: 01018383989 Date Filed: 03/15/2010 Page: 2
-3-

As to the plaintiffs’ challenge to Oklahoma’s parole procedures, the

magistrate judge recommended dismissal on the basis of issue preclusion. 

We review de novo the district court’s legal conclusions on the applicability of

the preclusion doctrine. Valley View Angus Ranch, Inc. v. Duke Energy Field

Servs., Inc., 497 F.3d 1096, 1100 (10th Cir. 2007). In doing so, we discern no

error with respect to Mr. Ellis, Mr. Chaney, and Mr. Duncan. All three of these

plaintiffs brought and lost identical challenges in prior suits. See Ellis v. Brown,

No. 103,217 (Okla. Crim. App. July 5, 2006) (unpublished); Ellis v. Brown,

No. CIV-06-1156-R, 2007 WL 28273 (W.D. Okla. Jan. 3, 2007) (unpublished),

aff’d, 237 F. App’x 327 (10th Cir. 2007). Issue preclusion thus prevents them

from trying their hand again in a new suit. At least as far as we can tell, however,

it does not appear that Mr. Easterwood was a party to the prior proceedings, and

so he may not be subject to issue preclusion. This is not to say that his claims are

meritorious. But it is to say that, from the record before us at this time, we

cannot discern a basis for holding his challenges to Oklahoma’s parole procedures

barred by the doctrine of issue preclusion. 

In light of this, then, we affirm all of the district court’s disposition with

one minor exception, vacating its holding that Mr. Easterwood’s challenges to

Oklahoma’s parole procedures are barred by the doctrine of issue preclusion

Appellate Case: 09-6115 Document: 01018383989 Date Filed: 03/15/2010 Page: 3
-4-

and remanding this case for further proceedings consistent with this order and

judgment.

Entered for the Court

Neil M. Gorsuch

Circuit Judge

Appellate Case: 09-6115 Document: 01018383989 Date Filed: 03/15/2010 Page: 4