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(D. Kan.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. -2- ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 districtcourt 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 c ourt to screen prisoner civil actions against governmental entity or employee anddismiss if it fails to state1 This court has rejected similar arguments in unpubl ished 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). -3- claim upon which relief may be granted). “In deter mining whether dismissal is proper, we accept the allegations in the complaint as true and construe those allegations and any reasonable inferences therefromin the light most favorable to [Mr. Woodberry]. Also, because [he] proceeds pro s e, 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 st andards, we affirm. In his complaint, and on appeal, Mr. Woodberry chal lenged, on state and federal constitutional and statutory grounds, defen dants’ failure to apply the provisions of the Kansas Sentencing Guidelines Act concerning parole and good time credits to himself and others who committed cr imes 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 actionfor failure to state a claim upon which relief may be granted after findin g 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-4-

addition, the court noted that it appeared that the Kansas courts had denied relief to Mr. Woodberry for similar claims before he comme nced 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 inits Order filed February 10, 2004. R. Doc. 11. Mr. Woodberry has received a fu ll 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 is sue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge