                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 6 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT REID,

                Plaintiff-Appellant,

    v.                                                    No. 02-6200
                                                    (D.C. No. 01-CV-922-L)
                                                          (W.D. Okla.)
    OKLAHOMA PARDON AND
    PAROLE BOARD; SUSAN BUSSEY,
    Chairman of Oklahoma State Pardon
    and Parole Board; OKLAHOMA
    DEPARTMENT OF CORRECTIONS;
    RON WARD, Director of Oklahoma
    Department of Corrections,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the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.
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 brought this action under 42 U.S.C. § 1983 alleging that (1) the

change in frequency of his parole reconsideration from annually to every three

years violates the Ex Post Facto Clause of the Constitution, (2) defendants have

failed to promulgate certain rules as required by statutory amendments to

Oklahoma’s parole procedures in the Truth in Sentencing Act, and (3) defendants

have failed to comply with their obligations under 42 U.S.C. §§ 13701 and 13702,

which condition a State’s receipt of particular federal grants on the

implementation of certain procedures by the State. In his complaint, he named as

defendants the Oklahoma Pardon and Parole Board (OPPB) and the Department of

Corrections (DOC). He also listed Susan Bussey as chairman of the OPPB and

therefore “required to be served” and Ron Ward as acting director of DOC and

also “required to be served.” R., Doc. 1 at 1-2. He sought declaratory and

injunctive relief, asking for “[a] due process procedure for determining what

sentence he would have received for his crime” and “some measure of

constitutional protection in connection with parole and/or commutation for release

and/or discharge of sentence” based on a 1997 change in Oklahoma’s sentencing

laws. Id. at 8.




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      Defendants filed a motion to dismiss and/or for summary judgment,

accompanied by a special report as ordered by the court.    See Martinez v. Aaron ,

570 F.2d 317 (10th Cir. 1978). Defendants argued that (1) plaintiff had failed to

exhaust prison administrative remedies, as required by 42 U.S.C. § 1997e(a);

(2) the named defendants are agencies of the State and therefore protected from

suit by the Eleventh Amendment; (3) the individual defendants were named in

their official capacities and therefore also immune; (4) plaintiff failed to allege

any personal participation by defendants Bussey and Ward; (5) plaintiff’s right to

be free from Ex Post Facto laws was not violated by the change to his parole

eligibility dates; and (6) defendants did not fail to follow the appropriate statutes

because the Truth in Sentencing Act matrices are inapplicable to prisoners such as

plaintiff who are convicted of first-degree murder.

      In his report and recommendation, the magistrate judge recommended

granting defendants’ motion to dismiss/summary judgment without prejudice as to

plaintiff’s claims against defendants Bussey and Ward for failure to exhaust

administrative remedies as required by 42 U.S.C. § 1997e(a) and with prejudice as

to the balance of plaintiff’s claims as barred under the Eleventh Amendment.

Following de novo review, the district court concurred with the magistrate judge’s

determination that plaintiff’s action against the state agencies is barred under the

Eleventh Amendment. The court further determined that neither defendant


                                           -3-
Bussey nor defendant Ward were properly named or served, and therefore there

was no action pending against them. The court then granted defendants’ motion

to dismiss and dismissed the entire action without prejudice.

      On appeal, plaintiff argues that there are no administrative remedies

available, within either the OPPB or the DOC, and that defendants are not

protected by the Eleventh Amendment. Aplt. Opening Br. at 7-8.

      We review de novo the district court’s decision dismissing this action based

on Eleventh Amendment immunity.        See Joseph A. ex rel. Corrine Wolfe v.

Ingram , 275 F.3d 1253, 1259 (10th Cir. 2002). We affirm.

      We agree with the district court that the individual defendants were not

properly named or served, in either an official or personal capacity. First, they

were not named in the complaint other than the individuals “required to be

served” in order to effect service on the agency defendants. R., Doc. 1 at 1-2.

Second, they are not alleged as having committed any acts in violation of

plaintiff’s constitutional rights. Finally in his certificates of service, praecipe for

summons, and summonses, plaintiff clearly named these individuals only as

agents for service of the complaint on the agencies.

      We further agree that plaintiff’s claims against OPPB and DOC are barred

by the Eleventh Amendment. State agencies, as well as States, are entitled to

Eleventh Amendment immunity.       Hefley v. Textron, Inc. , 713 F.2d 1487, 1493


                                           -4-
(10th Cir. 1983); Will v. Mich. Dep’t of State Police   , 491 U.S. 58, 70 (1989).

This is not a situation in which Congress has abrogated the state’s Eleventh

Amendment immunity, nor one in which the state has consented to be sued.

See Ruiz v. McDonnell , 299 F.3d 1173, 1181 (10th Cir. 2002),      cert. denied , 123

S. Ct. 1908 (2003). Therefore, the State and its agencies are immune from this

suit regardless of the relief sought.   ANR Pipeline Co. v. Lafaver , 150 F.3d 1178,

1187 (10th Cir. 1998) (barring any form of relief against state agency, even solely

prospective injunctive relief). Because this action is barred, we need not address

exhaustion issues.

       Accordingly, the judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.


                                                        Entered for the Court



                                                        Stephanie K. Seymour
                                                        Circuit Judge




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