UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

THOMAS WOODBERRY,

Plaintiff-Appellant,

v.

STATE OF KANSAS; BILL GRAVES, Governor of the State of Kansas, in his official and individual capacity; MARILYN SCAFE, Chairman of the Kansas Parole Board, in her official and individual capacity; CARL CUSHINGBERRY, Member of the Kansas Parole Board, in his official and individual capacity; LARRY WOODWARD, Member of the Kansas Parole Board, in his official and individual capacity; BEN BURGESS, Member of the Kansas Parole Board, in his official and individual capacity; COLENE SEIDEL, Member of the Kansas Parole Board, in her official and individual capacity; CHARLES E. SIMMONS, Secretary of the Kansas Department of Corrections, in his official and individual capacity; DAVE MCKUNE, Warden, Lansing Correctional Facility, in his official and individual capacity,

Defendants-Appellees.

No. 04-3106

(D.C. No. 03-CV-3461-GTV)

(D. Kan.)

ORDER AND JUDGMENT*

Before ANDERSON and BALDOCK, Circuit Judges, and MARTEN,** District Judge.

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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff Thomas Woodberry, a Kansas state prisoner, who is proceeding pro se and in forma pauperis, appeals the district court's dismissal of his civil rights complaint for failure to state a claim upon which relief may be granted and the court's denial of his motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). See 28 U.S.C. §§ 1915(e)(2)(B)(ii) (requiring district court to dismiss prisoner in forma pauperis complaint if it fails to state claim on which relief may be granted); 1915A(a), (b)(1) (requiring district court to screen prisoner civil actions against governmental entity or employee and dismiss if it fails to state claim upon which relief may be granted). "In determining whether dismissal is proper, we accept the allegations in the complaint as true and construe those allegations and any reasonable inferences therefrom in the light most favorable to [Mr. Woodberry]. Also, because [he] proceeds pro se, we liberally construe his complaint." French v. Adams County Det. Ctr., No. 04-1094, 2004 WL 1798308, at *1 (10th Cir. Aug. 12, 2004). Applying these standards, we affirm.

In his complaint, and on appeal, Mr. Woodberry challenged, on state and federal constitutional and statutory grounds, defendants' failure to apply the provisions of the Kansas Sentencing Guidelines Act concerning parole and good time credits to himself and others who committed crimes before enactment of the Act. He also challenged the limited retroactivity provisions of the Act, Kan. Stat. Ann. § 21-4724(b).

The district court dismissed Mr. Woodberry's action for failure to state a claim upon which relief may be granted after finding that state and federal courts had rejected claims similar to Mr. Woodberry's claims. See Jones v. Bruce, 921 F. Supp. 708 (D. Kan. 1996); Chiles v. State, 869 P.2d 707 (Kan. 1994).1 In addition, the court noted that it appeared that the Kansas courts had denied relief to Mr. Woodberry for similar claims before he commenced this federal action. See Woodberry v. Graves, No. 90,093, 2003 WL 22533129 (Kan. Ct. App. Nov. 7, 2003) (per curiam), review denied, (Kan. Feb. 10, 2004).

Because we agree with the conclusions and analysis of the district court, we affirm for substantially the same reasons stated in its Order filed February 10, 2004. R. Doc. 11. Mr. Woodberry has received a full and fair hearing on the merits of his claims.

The judgment of the district court is AFFIRMED. Mr. Woodberry's request for appointment of appellate counsel is DENIED. We remind Mr. Woodberry of his obligation to make partial payments under 28 U.S.C. § 1915(b)(1) until his appellate filing fee is paid. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson

Circuit Judge