Woodberry v. State of Kansas

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 14 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
THOMAS WOODBERRY,
Plaintiff-Appellant,
v. No. 04-3106
(D.C. No. 03-CV-3461-GTV)
STATE OF KANSAS; BILL (D. Kan.)
GRAVES, Governor of the State of
Kansas, in his official and individual
capacity; MARILYN SCAFE,
Chairman of the Kansas Parole Board,
in her official and individual capacity;
CARL CUSHINGBERRY, Member of
the Kansas Parole Board, in his
official and individual capacity;
LARRY WOODWARD, Member of
the Kansas Parole Board, in his
official and individual capacity; BEN
BURGESS, Member of the Kansas
Parole Board, in his official and
individual capacity; COLENE
SEIDEL, Member of the Kansas
Parole Board, in her official and
individual capacity; CHARLES E.
SIMMONS, Secretary of the Kansas
Department of Corrections, in his
official and individual capacity;
DAVE MCKUNE, Warden, Lansing
Correctional Facility, in his official
and individual capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District
Judge.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Thomas Woodberry, a Kansas state prisoner, who is proceeding
pro se and in forma pauperis, appeals the district court’s dismissal of his civil
rights complaint for failure to state a claim upon which relief may be granted and
the court’s denial of his motion to alter or amend the judgment under Fed. R. Civ.
P. 59(e). See 28 U.S.C. §§ 1915(e)(2)(B)(ii) (requiring district court to dismiss
prisoner in forma pauperis complaint if it fails to state claim on which relief may
be granted); 1915A(a), (b)(1) (requiring district court to screen prisoner civil
actions against governmental entity or employee and dismiss if it fails to state
*
This order and judgment is not binding precedent, except under the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.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
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claim upon which relief may be granted). “In determining whether dismissal is
proper, we accept the allegations in the complaint as true and construe those
allegations and any reasonable inferences therefrom in the light most favorable to
[Mr. Woodberry]. Also, because [he] proceeds pro se, we liberally construe his
complaint.” French v. Adams County Det. Ctr. , No. 04-1094, 2004 WL 1798308,
at *1 (10th Cir. Aug. 12, 2004). Applying these standards, we affirm.
In his complaint, and on appeal, Mr. Woodberry challenged, on state and
federal constitutional and statutory grounds, defendants’ failure to apply the
provisions of the Kansas Sentencing Guidelines Act concerning parole and good
time credits to himself and others who committed crimes before enactment of the
Act. He also challenged the limited retroactivity provisions of the Act, Kan. Stat.
Ann. § 21-4724(b).
The district court dismissed Mr. Woodberry’s action for failure to state a
claim upon which relief may be granted after finding that state and federal courts
had rejected claims similar to Mr. Woodberry’s claims. See Jones v. Bruce ,
921 F. Supp. 708 (D. Kan. 1996); Chiles v. State , 869 P.2d 707 (Kan. 1994). 1
In
1
This court has rejected similar arguments in unpublished habeas corpus
cases. See, e.g. , Watkins v. Nelson , No. 00-3233, 2001 WL 113822, at **1 (10th
Cir. Feb. 9, 2001); Lane v. Nye , No. 97-3248, 1998 WL 327684, at **1 (10th Cir.
June 19, 1998); Dial v. Hannigan , No. 97-3235, 1998 WL 223346, at **1 (10th
Cir. May 6, 1998); Mueller v. Bruce , No. 97-3184, 1998 WL 45496, at **1 (10th
Cir. Feb. 5, 1998).
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addition, the court noted that it appeared that the Kansas courts had denied relief
to Mr. Woodberry for similar claims before he commenced this federal action.
See Woodberry v. Graves , No. 90,093, 2003 WL 22533129 (Kan. Ct. App. Nov. 7,
2003) (per curiam), review denied , (Kan. Feb. 10, 2004).
Because we agree with the conclusions and analysis of the district court, we
affirm for substantially the same reasons stated in its Order filed February 10,
2004. R. Doc. 11. Mr. Woodberry has received a full and fair hearing on the
merits of his claims.
The judgment of the district court is AFFIRMED. Mr. Woodberry’s request
for appointment of appellate counsel is DENIED. We remind Mr. Woodberry of
his obligation to make partial payments under 28 U.S.C. § 1915(b)(1) until his
appellate filing fee is paid. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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