F I L E D

United States Court of Appeals

Tenth Circuit

SEP 14 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THOMAS WOODBERRY,

Plaintiff-Appellant,

v.

STATE OF KANSAS; BILL

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.

No. 04-3106

(D.C. No. 03-CV-3461-GTV)

(D. Kan.)
* This order and judgment is not binding precedent, except under the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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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
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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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
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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