                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                  JUN 9 1997
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk
 JEROLD G. CAUTHON,

           Plaintiff-Appellant,

               v.                                             No. 96-3276
                                                        (D.C. No. 94-3429-RDR)
 KANSAS PAROLE BOARD,                                          (D. Kan.)

           Defendant-Appellee.



                                  ORDER AND JUDGMENT*



Before ANDERSON, HENRY, and BRISCOE, 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

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

       Plaintiff Jerold G. Cauthon, appearing pro se and proceeding in forma pauperis,

appeals the district court's dismissal of his § 1983 action as frivolous under 28 U.S.C. §

1915(d). We affirm.



       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       Cauthon was convicted in Kansas state court in 1982 of aggravated robbery, two

counts of arson, and illegal possession of a firearm. In 1987, he was convicted of

aggravated escape from custody. His controlling sentence is 9 to 32 years. Although

initially paroled on April 6, 1990, he subsequently violated the terms of his parole by

leaving a drug treatment program without permission and failing to report to his parole

officer as scheduled. The Kansas Parole Board revoked his parole in February 1993. He

was reconsidered for parole in July 1993, December 1993, and July 1994, and was passed

for future parole consideration on each occasion. Cauthon's next consideration for parole

is scheduled for August 1997. On October 17, 1994, Cauthon filed this action against the

Kansas Parole Board and Michael Nelson, Director of the El Dorado Correctional Facility

where Cauthon is currently confined. Cauthon alleged the Parole Board violated his

constitutional rights by denying reparole, and sought injunctive relief, declaratory relief,

and compensatory damages.

       After receiving requested Martinez reports from defendants, the district court

dismissed the action as frivolous under § 1915(d) (now codified at 28 U.S.C. §

1915(e)(2)(B)(i)). The district court concluded (1) Cauthon's complaint failed to allege

any personal participation on the part of Nelson sufficient to state a claim under § 1983;

(2) the Parole Board members were absolutely immune from liability for actions taken in

the performance of their official duties regarding the granting or denial of parole; and (3)

Cauthon's requests for injunctive and declaratory relief were not cognizable under § 1983.

       "Under § 1915(d), a district court may dismiss an in forma pauperis action as

frivolous if the 'claim [is] based on an indisputably meritless legal theory' or if it is

founded on 'clearly baseless' factual contentions." Schlicher v. Thomas, 111 F.3d 777,


                                               -2-
779 (10th Cir. 1997) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). In doing

so, the district court may consider a Martinez report. Id. (citing Hall v. Bellmon, 935

F.2d 1106, 1109 (10th Cir. 1991)).

       We review the district court's § 1915(d) order of dismissal for abuse of discretion,

Denton v. Hernandez, 504 U.S. 25, 33 (1992), and affirm for substantially the same

reasons set forth in its order.

       AFFIRMED. This appeal is frivolous or fails to state a claim under 28 U.S.C. §

1915(e)(2)(B)(i) or (ii) for purposes of counting "prior occasions" under 28 U.S.C. §

1915(g). The mandate shall issue forthwith.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                            -3-
