Clark v. Oklahoma Pardon & Parole Board ( 2022 )


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  • Appellate Case: 21-6079     Document: 010110632166      Date Filed: 01/14/2022   Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                        Tenth Circuit
    FOR THE TENTH CIRCUIT                       January 14, 2022
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    HERMAN TRACY CLARK,
    Plaintiff - Appellant,
    v.                                                        No. 21-6079
    (D.C. No. 5:20-CV-00981-C)
    OKLAHOMA PARDON AND PAROLE                                (W.D. Okla.)
    BOARD; TOM BATES, Executive
    Director; C. ALLEN MCCALL, J.D.
    Member; LARRY MORRIS, Member;
    KELLY DOYLE, Member; ROBERT
    GILLILAND, J.D. Member; ADAM
    LUCK, Member,
    Defendants - Appellees.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges.
    _________________________________
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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.
    Appellate Case: 21-6079    Document: 010110632166         Date Filed: 01/14/2022    Page: 2
    Herman Tracy Clark, an Oklahoma inmate proceeding pro se, appeals from the
    district court’s dismissal of his 
    42 U.S.C. § 1983
     action. Exercising jurisdiction
    under 
    28 U.S.C. § 1291
    , we affirm.1
    BACKGROUND
    In 1975, Clark pleaded nolo contendere in federal court to bank robbery under
    
    18 U.S.C. § 2113
    (a), (d), and (e) and was sentenced to life imprisonment. That same
    year, and in connection with the same underlying events, he was convicted in state
    court of first-degree murder under 
    Okla. Stat. Ann. tit. 21, § 701.1
     and was sentenced
    to death. The Oklahoma Court of Criminal Appeals affirmed Clark’s murder
    conviction but modified his sentence to life imprisonment.
    After serving twenty-five years in federal prison, Clark was transferred to state
    custody. He was considered for parole by the Oklahoma Pardon and Parole Board
    (PPB) in March 2015 and March 2018 but was denied both times. Effective
    November 1, 2018, the Oklahoma legislature amended 
    Okla. Stat. Ann. tit. 57, § 571
    (2), which lists violent offenses for which the PPB has the authority only to
    recommend parole and not to grant it outright, see Okla. Const. art. VI, § 10.
    Section 571(2)(i) specifies that “murder in the first degree” is a violent offense for
    parole purposes. But the 2018 amendments added the phrase “as provided for in
    1
    Although Clark is under filing restrictions in this court, those restrictions do
    not apply to this appeal because he is not “collaterally attacking [his] 1975 Oklahoma
    murder conviction.” Clark v. Braggs, 782 F. App’x 741, 742 (10th Cir. 2019)
    (internal quotation marks omitted).
    2
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    Section 701.7 of Title 21 of the Oklahoma Statutes” to § 571(2)(i). 2018 Okla. Sess.
    Law Serv. ch. 117, § 4 (West). Clark’s statute of conviction – § 701.1 – was repealed
    in 1976 and replaced with § 701.7. See Selsor v. Workman, 
    644 F.3d 984
    , 993
    (10th Cir. 2011). Because of the change to § 571(2)(i), Clark asserted that his
    conviction no longer qualified as a violent offense and that he, therefore, was eligible
    to be granted parole outright by the PPB, see Okla. Const. art. VI, § 10, and to have
    his parole reconsidered annually, see 
    Okla. Admin. Code § 515:25-11-1
    (a). The PPB
    allegedly concluded that Clark remained convicted of a violent offense and, thus, was
    eligible only for parole recommendation, see Okla. Const. art. VI, § 10, and
    reconsideration every three years, see 
    Okla. Admin. Code § 515:25-11-1
    (b)(2).2
    In September 2020, Clark filed a § 1983 action, alleging that the PPB violated
    his due process and equal protection rights under the Fourteenth Amendment by
    refusing to treat his conviction as a nonviolent offense and reconsider him annually
    in light of the 2018 amendments. A magistrate judge screened the complaint under
    
    28 U.S.C. §§ 1915
    (e)(2)(B) and 1915A and recommended that the district court
    dismiss the complaint under § 1915A(b)(1) for failure to state a claim upon which
    relief may be granted. The magistrate judge found Clark’s due process claim
    insufficient because: (1) “Oklahoma’s parole scheme is discretionary,” and he thus
    2
    Clark has attached to his brief correspondence with his parole investigator
    concerning the effect of the 2018 amendments. But these documents were not
    submitted to the district court, and we therefore do not consider them. See Utah v.
    U.S. Dep’t of Interior, 
    535 F.3d 1184
    , 1195 n.7 (10th Cir. 2008) (“[N]ew evidence
    not submitted to the district court is not properly part of the record on appeal.”).
    3
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    “has no constitutionally protected due process liberty interest in parole”; and
    (2) without a due process interest in parole itself, the PPB’s “application of its
    procedure does not violate his due process rights.” R. at 14 (internal quotation marks
    omitted). The magistrate judge rejected Clark’s equal protection claim on the
    grounds that: (1) the claim was “too conclusory” because he offered no supporting
    “factual allegations []or legal authority” and did not “identify any similarly-situated
    individual that ha[d] been given any different or more beneficial treatment”; and
    (2) “prisoners are neither a suspect class nor do they have a fundamental right to
    parole.” Id. at 14-15 (internal quotation marks omitted). In April 2021, the district
    court adopted the magistrate judge’s report and recommendation and dismissed the
    complaint.3 Clark then filed a Federal Rule of Civil Procedure 59(e) motion to
    amend the judgment, which the court denied. This appeal followed.4
    DISCUSSION
    We review de novo the district court’s dismissal for failure to state a claim.
    See McBride v. Deer, 
    240 F.3d 1287
    , 1289 (10th Cir. 2001). To survive dismissal,
    3
    The court initially adopted the report and recommendation based on the lack
    of objections. But it later received Clark’s objections, which he had placed in the
    prison legal mail system prior to his deadline. The court therefore struck its previous
    order and entered a new order stating that it reviewed the matter de novo, considered
    Clark’s objections, and found no error in the report and recommendation. Clark also
    moved the court to set aside its original order on the ground that his objections were
    timely. Having already done so, the court denied the motion as moot.
    4
    The defendants were not served in the district court and do not appear on
    appeal, so we decide this matter solely on Clark’s brief, the supplement to his brief,
    and the record on appeal.
    4
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    “a complaint must contain sufficient factual matter, accepted as true, to state a claim
    to relief that is plausible on its face.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009)
    (internal quotation marks omitted). In conducting our review, we accept
    well-pleaded factual allegations as true, view them in the light most favorable to the
    plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brooks v.
    Mentor Worldwide LLC, 
    985 F.3d 1272
    , 1281 (10th Cir.), cert. denied, 
    142 S. Ct. 477
    (2021). We also liberally construe a pro se plaintiff’s complaint. See Garrett v.
    Selby Connor Maddux & Janer, 
    425 F.3d 836
    , 840 (10th Cir. 2005). But we “cannot
    take on the responsibility of serving as the litigant’s attorney in constructing
    arguments and searching the record.” 
    Id.
     (internal quotation marks omitted).
    Clark challenges the district court’s conclusion that he failed to state a due
    process claim.5 To state such a claim, he must show “a constitutionally cognizable
    liberty or property interest with which the state has interfered.” Steffey v. Orman,
    
    461 F.3d 1218
    , 1221 (10th Cir. 2006). It is well-settled, however, that “the protected
    interests are substantive rights, not rights to procedure.” Elliott v. Martinez, 
    675 F.3d 1241
    , 1245 (10th Cir. 2012). This is because “[p]rocess is not an end in itself,” but
    serves only “to protect a substantive interest to which the individual has a legitimate
    5
    Clark also argues that the district court erred in rejecting his equal protection
    claim and that the PPB violated his Eighth Amendments rights. These arguments are
    too perfunctory to merit review. See United States v. Wooten, 
    377 F.3d 1134
    , 1145
    (10th Cir. 2004). In any event, he raised neither his current equal-protection
    arguments nor an Eighth Amendment claim in district court, and he has not argued
    plain error on appeal, thus “mark[ing] the end of the road for” these claims. Richison
    v. Ernest Grp., Inc., 
    634 F.3d 1123
    , 1131 (10th Cir. 2011).
    5
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    claim of entitlement.” Olim v. Wakinekona, 
    461 U.S. 238
    , 250 (1983). “Thus, an
    entitlement to nothing but procedure cannot be the basis for a liberty or property
    interest.” Elliott, 
    675 F.3d at 1245
     (internal quotation marks omitted).
    Clark does not claim a due process interest in parole itself. And settled
    precedent makes clear he has no such interest because Oklahoma has a discretionary
    parole system. See Shirley v. Chestnut, 
    603 F.2d 805
    , 806 (10th Cir. 1979)
    (per curiam); Shabazz v. Keating, 
    977 P.2d 1089
    , 1093 (Okla. 1999). See generally
    Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 
    442 U.S. 1
    , 11 (1979) (noting
    “[t]hat the state holds out the possibility of parole provides no more than a mere
    hope” for liberty, which “is not protected by due process”).
    Instead, Clark claims a due process interest in certain parole procedures,
    particularly the timing of his consideration for parole. See R. at 7 (alleging he has a
    “property and/or liberty interest right to an annual eligibility for consideration”). But
    without a due process interest in parole itself, he has no due process interest in the
    underlying procedures.6 This includes the frequency of his consideration for parole.
    See Koch v. Daniels, 296 F. App’x 621, 627-28 (10th Cir. 2008) (explaining that if an
    inmate “has no constitutionally-protected liberty interest in parole . . . , he can have
    no interest in how often he is considered for [it], or even whether he is considered for
    6
    We previously explained as much to Clark. See Clark v. Fallin,
    654 F. App’x 385, 388-89 (10th Cir. 2016) (rejecting his due process challenge not
    only to the denial of parole in 2015, but also to “the process by which” he was denied
    parole, because he lacked any “liberty interest in parole protectable by due process
    when [Oklahoma’s] parole system is discretionary”).
    6
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    [it] at all.”).7 And even though the parole procedures are, at least according to Clark,
    mandatory, he cannot show that the procedures, if followed, would result in his
    release from custody so as to create a due process interest. See Elwell v. Byers,
    
    699 F.3d 1208
    , 1214 (10th Cir. 2012) (“[W]hen state law creates a mandatory
    procedure but does not guarantee a particular substantive outcome, it does not confer
    a protected liberty interest.”); see also Teigen v. Renfrow, 
    511 F.3d 1072
    , 1081
    (10th Cir. 2007) (“Although detailed and extensive procedural requirements may be
    relevant as to whether a separate substantive property interest exists, the procedures
    cannot themselves constitute the property interest.” (citation omitted)).
    Accordingly, because Clark did not show a constitutionally protected liberty or
    property interest, the district court properly concluded that he failed to state a due
    process claim.
    CONCLUSION
    The district court’s judgment is affirmed. The district court’s dismissal counts
    as a strike against Clark for purposes of § 1915(g), though we note that he already
    7
    We cite Koch solely for its persuasive value. See 10th Cir. R. 32.1(A).
    7
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    has accumulated at least three strikes.8
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    8
    See Fallin, 654 F. App’x at 389 (affirming the dismissal of the complaint for
    failure to state a claim and concluding that the appeal was frivolous, thus resulting in
    two strikes); Clark v. Oakley, 560 F. App’x 804, 808-09 (10th Cir. 2014) (affirming
    the dismissal of the complaint for failure to state a claim, resulting in one strike).
    8