*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 7, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEVIN GIESE, Plaintiff - Appellant,

v. MARILYN SCAFE, Chairperson, 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. No. 04-3408 (D. Kansas) (D.Ct. No. 04-CV-3110-GTV)

ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 We liberally construe pro sepleadings and appellate briefs. Ledbetter v. City of

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 His parole was revoked and he is once more a guest at the Kansas facility.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. -2- 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. § 1983 seeking monetary damages and alleging the parole bo ard 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 Boar d 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 parol e 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 the n 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.4 The district court authorized Geise to proceed in forma pauperisin the district

court and we granted Giese’s motion to proceed in forma pauperison 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. -3- Finding nothing persuasive in Giese’s motion, the d istrict 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 aki n to dismissal under 12(b)(6) reviewed de novo ). We accept the allegations in the complaint as true and construe them in the light mo st favorable to the Appellant. However, “we are not bound by conclusory allegation s, unwarranted inferences, or legal conclusions.” Hackford v. Babbit , 14 F.3d 1457, 1465 (10th Cir. 1994) (citations omitted). Dismissal is appropriate “whe re it is obvious that the plaintiff cannot prevail on the facts he has alleged and it w ould be futile to give him an opportunity to amend.” Perkins , 165 F.3d at 806. Giese’s complaint alleges the defendants violated h is civil rights when they conditioned his parole release on placement in a st ructured living environment and then failed to remove this condition when no su ch placement was available within five months. When Geise’s parole planner in formed him there were no openings, Giese filed a Petition of Habeas Corpus and an attorney was appointed5 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. See10th 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). -4- for him. After his attorney telephoned attorneys f or the parole board, Giese was granted a special hearing and a release date was se t with the condition removed. The Eleventh Amendment bars claims for damages agai nst 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 instrumenta lity 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 membe rs 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 st ructured environment was not impossible to fulfill. Although there were no open ings 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 argum ent demonstrating the parole board members were not acting in the scope of theirofficial duties when imposing6 Giese accumulates one strike as a result of this appeal and one strike from the

district court dismissal. See28 U.S.C. § 1915(g); Jennings v. Natrona County Detention Ctr. , 175 F.3d 775 (10th Cir. 1999). -5- that condition. Accordingly, we DISMISS this appeal as frivolous. 6 Entered by the Court: Terrence L. O’Brien United States Circuit Judge