FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 23, 2016
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
DANIEL O’NEILL,
Plaintiff - Appellant,
v. No. 16-2080
(D.C. No. 1:15-CV-01030-RB-WPL)
GARY KING, New Mexico Attorney (D.N.M.)
General; NEW MEXICO
CORRECTIONS DEPARTMENT;
NEW MEXICO PAROLE BOARD;
RALPH TRUJILLO, Assistant
Attorney General,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MORITZ, Circuit Judges. **
Plaintiff-Appellant Daniel O’Neill, a state inmate appearing pro se, appeals
from the district court’s order dismissing his civil rights action for failure to state
a claim. O’Neill v. King, No. 1:15-CV-01030-RB-WPL (D.N.M. Apr. 22, 2016),
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
ECF No. 8. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Mr. O’Neill filed the underlying action pursuant to 42 U.S.C. § 1983
against a former New Mexico attorney general, an assistant attorney general, the
state corrections department, and the state parole board, alleging that his parole
date for one of several state court convictions was miscalculated. The district
court dismissed the civil rights complaint sua sponte pursuant to 28 U.S.C.
§ 1915(e)(2)(B), finding it frivolous and malicious, and pursuant to Rule 12(b)(6),
concluding that no legal relief was available to Mr. O’Neill. The district court
also imposed a “strike” under 28 U.S.C. § 1915(g), which counted immediately
notwithstanding this appeal. Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015).
We review the district court’s dismissal of a prisoner’s complaint for
frivolousness for an abuse of discretion. Fogle v. Pierson, 435 F.3d 1252, 1259
(10th Cir. 2006). After reviewing the record, we conclude that the district court
did not abuse its discretion in finding that Mr. O’Neill’s allegations are directly
contradicted by the state record and thus “lack[] an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Because the district
court also dismissed the underlying complaint for failure to state a claim, we
review those legal conclusions de novo. See Peterson v. Grisham, 594 F.3d 723,
727 (10th Cir. 2010). We find those conclusions are also sound. Mr. O’Neill
names agencies and officials who are not appropriate defendants in a § 1983
action. The Corrections Department and New Mexico Parole Board are entities of
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the state, not persons, and may not be sued under § 1983. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 63–64 (1989). Parole board members are immune from
actions taken in their official capacity. Gillette v. N.M. Parole Bd., 42 F. App’x
210, 211 (10th Cir. 2002) (citing Knoll v. Webster, 838 F.2d 450, 451 (10th Cir.
1988)). And the attorney general and assistant attorney general have
prosecutorial immunity. Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009).
Furthermore, a judgment in favor of Mr. O’Neill would imply the invalidity of his
sentence. See Heck v. Humphrey, 512 U.S. 477, 487 (1994).
AFFIRMED. All pending motions are denied and Mr. O’Neill is reminded
that he remains obligated to pay the full appellate filing fee. Our disposition
counts as a “strike” under 28 U.S.C. § 1915(g).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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