Giese v. Scafe

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 7, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
KEVIN GIESE,
Plaintiff - Appellant,
v. No. 04-3408
(D. Kansas)
MARILYN SCAFE, Chairperson, (D.Ct. No. 04-CV-3110-GTV)
Kansas Parole Board, in her individual
capacity; LARRY WOODARD, Vice
Chairperson, Kansas Parole Board, in
his individual capacity; (FNU) (LNU),
Unknown Member, Kansas Parole
Board, in his individual capacity;
KANSAS PAROLE BOARD,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent except under the doctrines of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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Kevin Giese filed a pro se 1 civil rights complaint under 42 U.S.C. § 1983seeking monetary damages and alleging the parole board unlawfully imposed an
impossible condition on his release, thus delaying his scheduled release for fifteen
months in violation of his Eighth Amendment rights. 2 He was granted leave to
proceed in forma pauperis. See 28 U.S.C. § 1915. On July 29, 2004, the district
court dismissed Geise’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii), 3
concluding his claim against the Kansas Parole Board was barred by the Eleventh
Amendment, see Bd. of Trustees of Univ. of Ala. v. Garret, 531 U.S. 356, 363
(2001), and the claims against the individual parole board members were barred
by their absolute immunity for actions taken within the scope of their state law
duties. See Russ v. Uppah, 972 F.2d 300, 302-03 (10th Cir. 1992). Giese then
filed a motion to alter and amend the judgment, or in the alternative, a notice of
appeal challenging the district court’s decision as to the individual defendants.
We liberally construe pro se pleadings and appellate briefs. Ledbetter v. City of
1
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
2
Giese was released on parole on March 12, 2003. His parole was revoked and he
is once more a guest at the Kansas facility.
3
28 U.S.C. § 1915(e)(2)(B)(iii) requires a district court to dismiss a case if it finds
the plaintiff is seeking monetary relief against a defendant who is immune from such
relief.
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Finding nothing persuasive in Giese’s motion, the district court denied it and
granted his request to proceed in forma pauperis on appeal. 4 Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
We review de novo a dismissal pursuant to § 1915(e)(2)(B). Perkins v.
Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (dismissal akin to
dismissal under 12(b)(6) reviewed de novo). We accept the allegations in the
complaint as true and construe them in the light most favorable to the Appellant.
However, “we are not bound by conclusory allegations, unwarranted inferences,
or legal conclusions.” Hackford v. Babbit, 14 F.3d 1457, 1465 (10th Cir. 1994)
(citations omitted). Dismissal is appropriate “where it is obvious that the plaintiff
cannot prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.” Perkins, 165 F.3d at 806.
Giese’s complaint alleges the defendants violated his civil rights when they
conditioned his parole release on placement in a structured living environment
and then failed to remove this condition when no such placement was available
within five months. When Geise’s parole planner informed him there were no
openings, Giese filed a Petition of Habeas Corpus and an attorney was appointed
4
The district court authorized Geise to proceed in forma pauperis in the district
court and we granted Giese’s motion to proceed in forma pauperis on appeal. We remind
him, however, that he is obligated to continue to make payment until all of his fees are
paid. He shall satisfy his obligation to the district court first, followed by payment of his
appellate fees.
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for him. After his attorney telephoned attorneys for the parole board, Giese was
granted a special hearing and a release date was set with the condition removed.
The Eleventh Amendment bars claims for damages against entities that are
arms or instrumentalities of a state. Sturdevant v. Paulsen, 218 F.3d 1160, 1164
(10th Cir. 2000). A parole board is an instrumentality of a state. McGrew v. Tex.
Bd. of Pardons & Parole, 47 F.3d 158, 161 (5th Cir. 1995). 5
It is also well-established that parole board members have absolute
immunity “for actions taken in performance of the [b]oard's official duties
regarding the granting or denying of parole." Russ v. Uppah, 972 F.2d 300, 303
(10th Cir. 1992) (quoting Knoll v. Webster, 838 F.2d 450, 451 (10th Cir. 1988)).
Contrary to Geise’s argument, the condition of a structured environment was not
impossible to fulfill. Although there were no openings at the time he sought
placement, that is not to say an opening would not have been available in the
future. Moreover, Giese fails to present any argument demonstrating the parole
board members were not acting in the scope of their official duties when imposing
5
We recognize an unpublished decision is not binding precedent, and citation to
such decisions is disfavored. However, there is no Supreme Court decision or published
Tenth Circuit precedent specifically addressing the status of a parole board in regard to
the Eleventh Amendment. See 10th Cir. R. 36.3(A) & (B). The following citations are
merely useful to recognize that this precise issue has been considered previously in this
circuit. Reid v. Okla. Pardon & Parole Bd., 67 Fed. Appx. 515, 517 (10th Cir. 2003),
cert. denied 541 U.S. 906 (2004) (parole board is arm of the state entitled to Eleventh
Amendment protection); Gillette v. N.M. Parole Bd., 42 Fed. Appx. 210, 211 (10th Cir.
2002)(same).
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that condition.
Accordingly, we DISMISS this appeal as frivolous. 6
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
6
Giese accumulates one strike as a result of this appeal and one strike from the
district court dismissal. See 28 U.S.C. § 1915(g); Jennings v. Natrona County Detention
Ctr., 175 F.3d 775 (10th Cir. 1999).
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