                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              June 7, 2005
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 KEVIN GIESE,

          Plaintiff - Appellant,

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


                             ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, 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          This order and judgment is not binding precedent except under the doctrines of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.
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 board 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 Board 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 parole 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 then

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.



       We liberally construe pro se pleadings and appellate briefs. Ledbetter v. City of
       1

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-
Finding nothing persuasive in Giese’s motion, the district 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 akin to

dismissal under 12(b)(6) reviewed de novo). We accept the allegations in the

complaint as true and construe them in the light most favorable to the Appellant.

However, “we are not bound by conclusory allegations, unwarranted inferences,

or legal conclusions.” Hackford v. Babbit, 14 F.3d 1457, 1465 (10th Cir. 1994)

(citations omitted). Dismissal is appropriate “where it is obvious that the plaintiff

cannot prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Perkins, 165 F.3d at 806.

       Giese’s complaint alleges the defendants violated his civil rights when they

conditioned his parole release on placement in a structured living environment

and then failed to remove this condition when no such placement was available

within five months. When Geise’s parole planner informed him there were no

openings, Giese filed a Petition of Habeas Corpus and an attorney was appointed


       4
        The district court authorized Geise to proceed in forma pauperis in the district
court and we granted Giese’s motion to proceed in forma pauperis on 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-
for him. After his attorney telephoned attorneys for the parole board, Giese was

granted a special hearing and a release date was set with the condition removed.

      The Eleventh Amendment bars claims for damages against 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 instrumentality 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 members 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 structured environment was not

impossible to fulfill. Although there were no openings 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 argument demonstrating the parole

board members were not acting in the scope of their official duties when imposing


      5
         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. See 10th 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-
that condition.

       Accordingly, we DISMISS this appeal as frivolous. 6

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




      6
         Giese accumulates one strike as a result of this appeal and one strike from the
district court dismissal. See 28 U.S.C. § 1915(g); Jennings v. Natrona County Detention
Ctr., 175 F.3d 775 (10th Cir. 1999).

                                           -5-
