                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 24 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RONALD EDWARD GILLETTE,

                Plaintiff - Appellant,

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

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.


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

unanimously to grant the parties’ request for a decision 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.



*
      This order and judgment is not binding precedent, except under the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.
        Pursuant to 42 U.S.C. § 1983, plaintiff-appellant Ronald Edward Gillette,

proceeding pro se, filed a civil rights complaint against 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 to 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 prejudice, 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 against 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 claims for damages against the

Board were barred by the Eleventh Amendment. Having 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)


                                          -2-
(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). Thus, 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 district court adopted the

magistrate judge’s proposed findings and recommended 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 review, we agree with the

district court that the Board is entitled to a judgment 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 declaratory and injunctive

relief concerning the requirement under the DNA Identification Act that prisoners

must provide a blood sample as a condition of their release on parole, see N.M.


                                           -3-
Stat. Ann. § 29-16-6, the district court agreed with the magistrate judge’s

conclusion that the Act is constitutional as applied to plaintiff since he is a

convicted sex offender. We do not need to reach the merits of plaintiff’s

constitutional challenge to the DNA Identification Act, however, because plaintiff

was released from prison by the New Mexico Department of Corrections on

December 17, 2001.     See Aplee. App. at Ex. 10. As a result, plaintiff’s claims 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 respect to released

prisoner’s claims for declaratory and injunctive relief under the First Amendment

and the Religious Freedom Restoration Act of 1993).

      Accordingly, we AFFIRM: (1) the district court’s dismissal of plaintiff’s

claims for damages against the individual defendants and the Board; and (2) the

district court’s entry of summary judgment in favor of the Board on plaintiff’s

claims for declaratory and injunctive relief concerning the alleged failure of

defendants to inform him of the reasons he was denied parole.      1
                                                                       We DISMISS the


1
       We also affirm the district court’s denial of plaintiff’s motion for
interlocutory review regarding the individual defendants’ immunity. In light of
                                                                        (continued...)

                                           -4-
portion of plaintiff’s appeal challenging the district court’s entry of summary

judgment in favor of the Board on plaintiff’s claims for declaratory and injunctive

relief with respect to the DNA Identification Act as moot.

       Finally, plaintiff’s motion for leave to proceed on appeal without

prepayment of costs or fees is granted. We remind plaintiff of his obligation,

pursuant to this court’s order dated November 9, 2001, 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




1
 (...continued)
the fact that the district court fully disposed of all of plaintiff’s claims, the court
correctly denied the motion for interlocutory review as moot. We also note that
plaintiff has filed a motion in this court in opposition 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 to file a formal motion to
withdraw since the notice of substitution simply informed this court that a
different Assistant Attorney General from the New Mexico Attorney General’s
office would be henceforth handling the defense of this appeal as counsel of
record for defendants.

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