Public-domain · open source
OpenJurist

85 F.3d 640

Docket No. 95-7085.

Battle Kennedy v. Fields

Tenth Circuit Court of Appeals

May 8, 1996.

Tenth Circuit Court of Appeals · decided 1996-05-08

Applies 28 U.S.C. § 1915

Relies on Battle v. Anderson · Cascade Energy & Metals Corporation v. Jeffrey G. Banks, the and Judgment Creditors Herein Associate Gold Technics Dfts, and Interphase Corporation W. David Weston Telegraph Mine Limited Stephen W. Rupp, Trustee of the Chapter 7 Bankruptcy Estate of Rex Montis Silver Co. v. Rex Montis Silver Company, Cross-Claim-Defendant-Appellant. Cascade Energy & Metals Corporation, Delano S. Findlay v. Banks, the and Judgment Creditors Herein Rex Montis Silver Company Interphase Corporation W. David Weston Telegraph Mine Limited Stephen W. Rupp, Trustee of the Chapter 7 Bankruptcy Estate of Rex Montis Silver Company, Associate Gold Technics Dfts, Cascade Energy & Metals Corporation v. Banks, the and Judgment Creditors Herein Rex Montis Silver Company Interphase Corporation W. David Weston Stephen W. Rupp, Trustee of the Chapter 7 Bankruptcy Estate of Rex Montis Silver Company, Associate Gold Technics Dfts v. Telegraph Mine Limited, and Telegraph Mine Joint Venture, Cross-Claim-Defendants-Appellants. Cascade Energy & Metals Corporation v. Banks, the and Judgment Creditors Herein Rex Montis Silver Company Interphase Corporation W. David Weston Telegraph Mine Limited Stephen W. Rupp, Trustee of the Chapter 7 Bankruptcy Estate of Rex Montis Silver Co., Associate Gold Technics Dfts, Cascade Energy & Metals Corporation v. Banks, the and Judgment Creditors Herein Associate Interphase Corporation Stephen W. Rupp, Trustee of the Chapter 7 Bankruptcy Estate of Rex Montis Silver Co., Gold Technics Dfts, Rex Montis Silver Company W. David Weston Telegraph Mine Limited, Cross-Claim-Defendants-Appellees. Cascade Energy & Metals Corporation v. Banks, the and Judgment Creditors Herein Rex Montis Silver Company Interphase Corporation Telegraph Mine Limited Stephen W. Rupp, Trustee of the Chapter 7 Bankruptcy Estate of Rex Montis Silver Co. Estate of Bernard Hodowski, and Associate Gold Technics Dfts Sam Harmatz A.C. Nejedly Rosalie Donahey Chris Waugh H.E. Moses Estate of Joe F. Duncan Eliot Weinberg v. W. David Weston, Cross-Claim-Defendant-Appellant · Facteau v. Sullivan

Decided 1996-05-08

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT*

Before ANDERSON, BARRETT and LOGAN, Circuit Judges.

¶1

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

¶2

Plaintiff Olen Kennedy appeals the dismissal, under 28 U.S.C. § 1915(d), of his Application for Citation for Contempt filed under the caption of this class action. Plaintiff's application focuses on a paragraph in Battle v. Anderson, 376 F.Supp. 402 (E.D.Okla.1974), in which the court ruled that it was the responsibility of the court "to order that all violations of federal constitutional and civil rights, and of rights and privileges secured by the laws, regulations and policies of the State of Oklahoma, cease forthwith." Id. at 427-28. He contends that as a member of the class he is entitled to relief based upon the decision in Battle. The gist of his contention is that though he is serving a life sentence he is entitled to statutory and earned credits under an Oklahoma statute calculated on the basis of a forty-five-year term, which when combined with the time he has already served (since 1973) discharges his life sentence, entitling him to release from prison. The prison officials apparently keep a record of those credits for all prisoners, but take the position that for servers of life sentences, the credits are only for consideration of the parole board; that such prisoners are never legally entitled to reduce their life sentence with such credits.

¶3

We agree with the district court that plaintiff's claims are not within the issues raised in Battle, which addressed conditions of confinement that allegedly violated the Constitution. The district court correctly dismissed plaintiff's claims because they are beyond the scope of Battle and may only be heard independent of that litigation. See Facteau v. Sullivan, 843 F.2d 1318, 1319-20 (10th Cir.1988). Plaintiff's complaint does not state a claim cognizable in federal court, as it raises no federal constitutional question, only issues of Oklahoma law.

¶4

AFFIRMED.

*

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

/85/f3d/640 · .json · Public domain