Farrell v. Keys, 10th Cir. (2001)
Farrell v. Keys, 10th Cir. (2001)
Farrell v. Keys, 10th Cir. (2001)
JUL 6 2001
PATRICK FISHER
Clerk
No. 00-7111
(D.C. No. 99-CV-660-S)
(E.D. Okla.)
Defendants-Appellees.
ORDER AND JUDGMENT
Appellant Jimmy Lyn Farrell, a state prisoner appearing pro se, appeals
from summary judgment granted in favor of appellees and the dismissal of his
This order and judgment is not binding precedent, except under the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.
civil rights complaint brought pursuant to 42 U.S.C. 1983 following his failure
to respond to a motion to dismiss and for summary judgment. We exercise
jurisdiction under 28 U.S.C. 1291 and reverse the grant of summary judgment,
but we remand for dismissal.
In his complaint, Mr. Farrell sought compensatory damages, return to
good-time credit Level 4, and restoration of good-time credits that were revoked
after his disciplinary conviction for bartering (or attempting to barter) in a prison
administrative misconduct proceeding.
Farrell had bartered his services as a jailhouse lawyer to another convict, Frank
Hensley, in exchange for a $20 money order made out to Mr. Farrell and sent to
Mr. Hensley by Debbie Hensley.
Although his complaint is somewhat difficult to parse, Mr. Farrell appears
to allege that his due process rights were violated because the evidence did not
support his disciplinary conviction and because the prison officials refused to
bring a prison law library log book and the Hensleys to his misconduct hearing.
See R. Doc. 2 at 31, 34. He claimed that the law library log would show that he
had not performed legal services for Mr. Hensley at the law library. The district
court ordered a Martinez report. See Martinez v. Aaron , 570 F.2d 317, 319-20
(10th Cir. 1978).
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defendants filed a motion to dismiss and for summary judgment, arguing that Mr.
Farrells claims should have been brought in a habeas petition; that the process
Mr. Farrell received satisfied constitutional standards as a matter of law; that one
defendant was entitled to qualified immunity; and that all defendants were
protected by Eleventh Amendment immunity.
moved to consolidate this case with another suit filed by Mr. Farrell
. Mr. Farrell
Murray
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v. Archambo , 132 F.3d 609, 610-11 & n.2 (10th Cir. 1998). [A] dismissal for
violation of the local rule [i]s a severe sanction reserved for the extreme case, and
is only appropriate where a lesser sanction would not serve the ends of justice.
Hancock v. City of Okla. City , 857 F.2d 1394, 1396 (10th Cir. 1988).
In
examining the ruling, we consider three factors: (1) the degree of actual
prejudice to the defendant; (2) the amount of interference with the judicial
process; [and] (3) the culpability of the litigant.
We note that other circuits do not permit the entry of summary judgment
on this basis without a determination on the merits of the Rule 56 motion.
See,
e.g. , Stough v. Mayville Comty. Sch. , 138 F.3d 612, 614-15 (6th Cir. 1998);
Tobey v. Extel/JWP, Inc. , 985 F.2d 330, 332 (7th Cir. 1993);
Henry v. Gill
Indus., Inc. , 983 F.2d 943, 950 (9th Cir. 1993) (holding local rule authorizing
summary judgment as sanction for failure to respond, without regard to merits,
impermissibly violated Fed. R. Civ. P. 56);
Anchorage Assocs. v. Virgin Islands
Bd. of Tax Review , 922 F.2d 168, 175-76 (3d Cir. 1990);
Jaroma v. Massey , 873
(continued...)
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Mr. Farrells
Id. at
487. However, even if we disregard the request for compensatory damages and
construe Mr. Farrells pleadings as a petition for habeas corpus,
see Brown v.
Smith , 828 F.2d 1493, 1495 (10th Cir. 1987) (habeas petition is appropriate means
by which to restore good-time credits), the petition must still be dismissed.
It is a prerequisite to habeas relief that the petitioner has exhausted
available judicial remedies in the state court.
722, 731 (1991) (noting longstanding rule that a state prisoners federal habeas
petition should be dismissed if the prisoner has not exhausted available state
(...continued)
F.2d 17, 19-20 (1st Cir. 1989); Dunlap v. Transamerica Occidental Life Ins. Co.
858 F.2d 629, 632 (11th Cir. 1988); Hibernia Natl Bank v. Administracion
Central Sociedad Anonima , 776 F.2d 1277, 1279 (5th Cir. 1985).
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In Oklahoma, an inmate
of Corr. , 916 P.2d 264, 265 (Okla. Crim. App. 1996) (noting that a writ of
mandamus is appropriate against prison officials when a prisoners minimum due
process rights [with regard to sentence credits] have been violated).
the petition must be dismissed.
Therefore,
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The judgment of the United States District Court for the Eastern District of
Oklahoma is REVERSED, and the case is remanded for entry of an order of
dismissal. The mandate shall enter forthwith.
Stephen H. Anderson
Circuit Judge
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