* This order and judgment is not binding precedent, e xcept under the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. 

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

### JUN 24 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RONALD EDWARD GILLETTE,

Plaintiff - Appellant,

v. NEW MEXICO PAROLE BOARD, and its individual members whose names are unknown to plaintiff, individually and in their official capacities, Defendants - Appellees. No. 01-2193 (D.C. No. CIV-01-15-BB/RLP) (D. New Mexico)

ORDER AND JUDGMENT *

Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Pursuant to 42 U.S.C. § 1983, plaintiff-appellant R onald Edward Gillette, proceeding pro se, filed a civil rights complaint a gainst defendants-appellees, the New Mexico Parole Board (Board) and its individual members, acting both individually and in their official capacities. In his complaint, plaintiff alleged that defendants violated his due process rights by: (1) denying him parole based on his refusal to provide a blood sample pursuant t o New Mexico’s DNA Identification Act (Act), N.M. Stat. Ann. §§ 29-16- 1 to -13; and (2) failing to advise him regarding the reasons why he was denied parole. Plaintiff sought both damages and declaratory and injunctive relief. In separate orders, the district court dismissed all of plaintiff’s claims with prej udice, and this appeal followed. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm in part and dismiss in part.Pursuant to 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6), the district court dismissed plaintiff’s claims for damages agai nst the individual defendants and the Board. The court found that the individual defendants were absolutely immune from damages liability for actions taken in performance of their official duties as members of Board, and that plaintiff’s cl aims for damages against the Board were barred by the Eleventh Amendment. Havin g conducted a de novo review, we agree with the district court’s analysis with respect to plaintiff’s claims for damages. See Knoll v. Webster , 838 F.2d 450, 451 (10th Cir. 1988)-3-

(holding that state parole board members are absolutely immune from suits for damages under § 1983); Sturdevant v. Paulsen , 218 F.3d 1160, 1164 (10th Cir. 2000) (holding that Eleventh Amendment bars claims for damages against entities that are arms or instrumentalities of a state). Th us, we affirm the dismissal of the claims for damages. With respect to plaintiff’s claims for declaratory and injunctive relief concerning the Board’s parole procedures, the distr ict court adopted the magistrate judge’s proposed findings and recommende d disposition, and it entered summary judgment in favor of the Board under Fed. R . Civ. P. 56. First, with respect to plaintiff’s claim that the Board failed to advise him why he was denied parole, the court agreed with the magistrate judge that the claim is without merit because plaintiff signed an official prison document specifically confirming that he “[r]efused to accept Conditions. Elected to do parole in this institution.” Aplee. App. at Ex. 9. Having conducted a de novo r eview, we agree with the district court that the Board is entitled to a judg ment as a matter of law on the failure to inform claim, and we affirm the entry of summary judgment on that aspect of plaintiff’s due process claim. Second, with respect to plaintiff’s claims for declaratoryand injunctive relief concerning the requirement under the DNA Identification Act t hat prisoners must provide a blood sample as a condition of theirrelease on parole, see N.M.1 We also affirm the district court’s denial of plain tiff’s motion for

interlocutory review regarding the individual defen dants’ immunity. In light of (continued...) -4- Stat. Ann. § 29-16-6, the district court agreed with the magistrate judge’s conclusion that the Act is constitutional as applie d to plaintiff since he is a convicted sex offender. We do not need to reach th e merits of plaintiff’s constitutional challenge to the DNA Identification Act, however, because plaintiff was released from prison by the New Mexico Departme nt of Corrections on December 17, 2001. See Aplee. App. at Ex. 10. As a result, plaintiff’s c laims for prospective declaratory and injunctive relief concerning the Act are moot. Cf.
Green v. Branson , 108 F.3d 1296, 1300 (10th Cir. 1997) (holding that a prisoner’s claims for declaratory and injunctive relief under § 1983 concerning conditions of confinement were mooted when inmate was released from prison); McAlpine v. Thompson , 187 F.3d 1213, 1215 (10th Cir. 1999) (same with r espect to released prisoner’s claims for declaratory and injunctive re lief under the First Amendment and the Religious Freedom Restoration Act of 1993). Accordingly, we AFFIRM: (1) the district court’s d ismissal of plaintiff’s claims for damages against the individual defendant s and the Board; and (2) the district court’s entry of summary judgment in favorof the Board on plaintiff’s claims for declaratory and injunctive relief concer ning the alleged failure of defendants to inform him of the reasons he was denied parole. 1 We DISMISS the1 (...continued)

the fact that the district court fully disposed of all of plaintiff’s claims, the court correctly denied the motion for interlocutory revie w as moot. We also note that plaintiff has filed a motion in this court in oppos ition to defendants’ notice of substitution of counsel, claiming that defendants’ counsel did not file a proper motion to withdraw under 10th Cir. R. 46.4. We deny plaintiff’s motion on the grounds that defendants’ counsel was not required t o file a formal motion to withdraw since the notice of substitution simply in formed this court that a different Assistant Attorney General from the New M exico Attorney General’s office would be henceforth handling the defense of this appeal as counsel of record for defendants. -5- portion of plaintiff’s appeal challenging the distr ict court’s entry of summary judgment in favor of the Board on plaintiff’s claim s for declaratory and injunctive relief with respect to the DNA Identification Act a s moot. Finally, plaintiff’s motion for leave to proceed o n appeal without prepayment of costs or fees is granted. We remind plaintiff of his obligation, pursuant to this court’s order dated November 9, 20 01, to continue making partial payments to the Clerk of the Court until the entire fee has been paid.

Entered for the Court
Robert H. Henry Circuit Judge