Rice v. Dept. of Corrections

----ooOoo----

Robert Rice,
Petitioner and Appellant,

v.

Department of Corrections,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020451-CA

F I L E D
October 24, 2002 2002 UT App 352 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Robert Rice, Draper, Petitioner Pro Se -----

Before Judges Jackson, Billings, and Thorne.

PER CURIAM:

Petitioner filed for extraordinary relief under rule 65B(b) of the Utah Rules of Civil Procedure. He claims that the prison acted in violation of his right to practice his religion by failing to provide a "vampire" diet. The trial court dismissed his petition as frivolous on its face without holding a hearing or requiring the State to respond. The trial court found that petitioner's claim is "merely one of multiple filings seeking similar/same relief contrary to the provisions of rule 65C ...."

This court issued a sua sponte notice of consideration for summary disposition on the basis that the appeal is untimely and that it raises questions that are so insubstantial as not to merit further consideration. See Utah R. App. P. 10. This court has now been provided a copy of the judgment of the trial court and has determined that the appeal is timely filed.

Therefore, the court addresses the issue of the insubstantial question presented in the appeal. The trial court incorrectly cited rule 65C of the Utah Rules of Civil Procedure, which applies to post-conviction petitions, when it dismissed this petition. However, rule 65B(b)(5) allows the trial court to dismiss a claim which has been previously adjudicated with respect to claims regarding conditions of confinement.

Petitioner has failed to demonstrate that the trial court was incorrect in its conclusion that the same or a similar claim had already been addressed. Petitioner does not even assert that the claim in this appeal has not already been addressed. Accordingly, the ruling of the trial court is summarily affirmed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
William A. Thorne Jr., Judge