Amen-Ra v. DOD ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
D.K. FALASHA MANSA MUSA
AMEN-RA; TERRY W. EVANS;
LOUIS B. NILES; JAMIE F.
GRAHAM; RICKY D. WELKER;
DARIN BUTLER; EARNEST J. No. 97-3156
SEXTON; CHARLES D. HICKS, JR., (D.C. No. 94-CV-3108)
and RICHARD L. PLUMMER, (D. Kan.)
Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT
OF DEFENSE,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiffs filed an amended complaint seeking equitable relief for violation
of constitutional rights. Of the several violations alleged in the amended
complaint, on appeal plaintiffs pursue only their allegation that applying
Department of Defense Directive 1325.4, governing parole eligibility, to them
violates the ex post facto clause of the United States Constitution. The district
court granted summary judgment in favor of defendants. We review the grant of
summary judgment de novo, see Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir.
1996), and we affirm. 1
Plaintiffs argue on appeal that the district court’s decision in Jefferson v.
Hart , No. 91-3232-RDR, 1993 WL 302137, at *4 (D. Kan. July 29, 1993), aff’d
84 F.3d 1314 (10th Cir.), cert. denied , 117 S. Ct. 258 (1996), controls this case.
They argue that case establishes the unconstitutionality of the directive in their
situations and that, based on that case, they are entitled to relief. Jefferson
involved a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. The
1
Three of the plaintiffs to this action, Louis Niles, Earnest Sexton, and
Jamie Graham, were paroled after the action was filed. Those plaintiffs have
withdrawn from this appeal.
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petitioner in that case was Dwayne Keith Jefferson, who is now known as Falasha
Mahsa Musa Amen-Ra, one of the plaintiffs in this action. As a preliminary
matter, we hold that the issue raised in this appeal, which is the same issue that
was decided in Jefferson , is res judicata as to Mr. Amen-Ra. See Nwosun v.
General Mills Restaurants, Inc. 124 F.3d 1255, 1257 (10th Cir. 1997) (setting
forth elements of res judicata ), cert. denied , 118 S. Ct. 1396 (1998).
As to the remaining plaintiffs, we hold that Jefferson does not entitle them
to relief in this case. Jefferson was a habeas corpus action limited to the
particular facts of that case. If plaintiffs wish to challenge the constitutionality of
their confinement, their remedy lies in habeas corpus. The district court’s grant
of summary judgment in favor of defendant is AFFIRMED. The motion to file a
surreply is granted.
Entered for the Court
Michael R. Murphy
Circuit Judge
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