Thomas Eugene Thorne vs Florida Parole Commission , 427 F. App'x 765 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15246 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 24, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:09-cv-00100-RH-AK
THOMAS EUGENE THORNE,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
CHAIRPERSON FLORIDA PAROLE COMMISSION,
TENA M. PATE,
Parole Commissioner,
MONICA DAVID,
Parole Commissioner,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 24, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Thomas Thorne, a Florida prisoner proceeding pro se, appeals the district
court’s order dismissing his 42 U.S.C. § 1983 civil rights complaint. On appeal,
Thorne argues that the district court erred in determining that his challenge to
Florida’s parole practices could not be brought under § 1983. He also contends
that the defendants were not entitled to Eleventh Amendment immunity. Thorne
further asserts that the district court erred in concluding that he had not stated a
claim under the Ex Post Facto Clause. Finally, Thorne argues that he stated valid
claims for relief under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. For the reasons stated below, we affirm.
I.
Thorne filed a pro se complaint under 42 U.S.C. § 1983 against Frederick
B. Dunphy, Chairperson of the Florida Parole Commission, and Parole
Commissioners Tena M. Pate and Monica David. Thorne explained that,
subsequent to his original sentencing, the Florida legislature made numerous
changes to the methods used to calculate eligibility for parole. Among other
things, the legislature changed the “matrix time range setting,” added new
aggravating factors, altered the time frames for review hearings, created
“alternative programs rather than violations,” changed the number of parole
commissioners, and gave the Parole Commission the authority to make policy and
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promulgate rules. Thorne argued that these changes violated the Ex Post Facto
Clause of the federal constitution to the extent that they had the effect of reducing
his eligibility for parole. He asked the district court to order that his parole
eligibility be reconsidered using the 1978 parole guidelines and any subsequent
changes that worked to his benefit. Thorne later sought leave to amend his
complaint to add claims under the Eighth Amendment and the Due Process and
Equal Protection Clauses of the Fourteenth Amendment.
The district court dismissed Thorne’s complaint for failure to state a claim
upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). The district court
noted that changes to a parole system can violate the Ex Post Facto Clause if the
changes create a significant risk of increasing the defendant’s punishment, but the
court observed that Thorne’s complaint was “long on conclusions and short on
specifics” as to how the changes in Florida’s parole procedures affected his term
of imprisonment. The district court allowed Thorne to file an amended complaint
identifying specific changes in Florida’s parole procedures that subjected him to a
significant risk of increased punishment.
In his amended complaint, Thorne asserted that Fla.Stat. § 947.174(b)(1)
violated the Ex Post Facto Clause because it provided for parole reviews once
every five years, rather than the two-year reviews that he previously had received.
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He asserted that the longer time period between reviews had the effect of
increasing his punishment because the delay prevented him from presenting new
information that might lower his projected release date. He explained that the
length of his sentence affected his custody level, his ability to transfer to other
correctional institutions, and his right to participate in vocational training and
substance abuse classes.
Thorne’s amended complaint also asserted an equal protection claim.
Thorne argued that other prisoners who, like him, had been convicted of murder,
and who also had a history of parole violations had been given more favorable
release dates and more frequent parole hearings. Next, Thorne raised a due
process claim. He argued that “Examiner Jennings” had violated his right to due
process by revoking his parole. He further contended the five-year delay between
parole hearings violated due process because it was selectively applied and was
based on vague and arbitrary rules. Finally, Thorne argued that his presumptive
parole release date violated the Eighth Amendment and the Florida Constitution.
Attached to Thorne’s complaint was a document showing how Thorne’s
presumptive parole release date was calculated. The Hearing Examiner initially
had recommended that Thorne receive a presumptive release date of February 8,
2012. The Parole Commission, however, rejected that recommendation and set a
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presumptive release date of February 8, 2034. The Commission also specified that
Thorne’s next parole interview would take place in March 2012. The Commission
explained that Thorne’s next interview would be held in five years, rather than two
years, because Thorne had been convicted of second degree murder, and because it
was not reasonable to expect that he would be granted parole within the next five
years. The Commission identified five factors that supported its determination
that Thorne was unlikely to be paroled before 2012: (1) the offense involved the
use of a firearm and knife; (2) the offense involved multiple separate offenses;
(3) an escalating or continuing pattern of criminal conduct; (4) Thorne was a
parole violator; and (5) any release might cause unreasonable risk to others.
The district court dismissed Thorne’s amended complaint. First, the district
court observed that Thorne still had not identified any changes to the Florida
parole system that created a substantial risk of increasing his punishment.
Accordingly, the court determined that the amended complaint failed to state an ex
post facto claim. The district court noted that the amended complaint raised
additional claims that the Parole Commission had failed to follow state law in
setting Thorne’s presumptive parole release date, and that Thorne was treated less
favorably than similarly-situated inmates. The district court concluded that those
allegations failed to state a claim under § 1983 for several reasons. First, the court
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observed that state officials had Eleventh Amendment immunity in federal courts
from claims alleging violations of state law. Second, the district court noted that
Thorne could not bring a claim under § 1983 if success on that claim necessarily
would end or shorten his period of incarceration. Finally, the district court
concluded that the amended complaint had not stated a claim for selective
enforcement because Thorne had not shown that he was treated differently from
similarly-situated inmates.
II.
We review a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo.
Speaker v. U.S. Dep’t of Health and Human Services Centers for Disease Control
and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). We “accept[] the factual
allegations in the complaint as true and construe[] them in the light most favorable
to the plaintiff.” Id. To survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868(2009). The complaint must include enough facts “to raise a right to relief above
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the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
The Supreme Court has explained that a prisoner may not use 42 U.S.C.
§ 1983 to challenge “the fact or duration of his confinement.” Wilkinson, 544 U.S.
at 78, 125 S.Ct. at 1245 (quotation omitted). A prisoner seeking release from
custody, or a reduction in his sentence, must seek habeas relief instead. Id. at 78,
125 S.Ct. at 1245. Nevertheless, a claim challenging parole procedures may be
brought under § 1983 if success on that claim would not automatically reduce the
defendant’s term of imprisonment. Id. at 82, 125 S.Ct. at 1248.
Here, some of Thorne’s claims challenged the fact and duration of his
confinement. Specifically, Thorne argued that Examiner Jennings violated his
right to due process by revoking his parole, and that the Parole Commission acted
improperly by setting a release date of 2034, rather than following the hearing
examiner’s recommendation of an earlier date. Success on those claims would
necessarily have invalidated the revocation of Thorne’s parole or shortened his
term of imprisonment. Therefore, the district court properly concluded that those
particular claims were not cognizable under § 1983. See Wilkinson, 544 U.S. at
78, 125 S.Ct. at 1245. The district court correctly recognized that Thorne’s other
challenges to Florida's parole procedures were cognizable under § 1983, as
success on those claims would not necessarily lead to Thorne’s release from
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custody. See id. at 82, 125 S.Ct. at 1248.
III.
The Eleventh Amendment bars state-law claims against a state in federal
court, even where the plaintiff is only seeking prospective relief. Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 103-06, 104 S.Ct. 900, 909-11, 79
L.Ed.2d 67 (1984). Suits against a state officer in his or her official capacity are
considered to be suits against the state. Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989).
In this case, the district court correctly determined that the defendants were
entitled to Eleventh Amendment immunity to the extent that Thorne was arguing
that the Parole Commission failed to follow state law in setting his presumptive
parole release date. See Pennhurst, 465 U.S. at 103-06, 104 S.Ct. at 909-11.
Notably, the district court did not conclude that the defendants were entitled to
Eleventh Amendment immunity with respect to Thorne’s federal-law claims, for
which he was only seeking prospective relief. Instead, the court dismissed those
claims on other grounds.
IV.
The federal constitution prohibits the states from enacting ex post facto laws
that retroactively increase the penalty for a crime after it has been committed. U.S.
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Const., art. I., § 10, cl. 1; Garner v. Jones, 529 U.S. 244, 249, 120 S.Ct. 1362,
1367, 146 L.Ed.2d 236 (2000). The Supreme Court has explained that retroactive
changes in the law governing parole of prisoners can violate the Ex Post Facto
Clause if those changes create a significant risk of prolonging the prisoner’s
incarceration. Garner, 529 U.S. at 251, 120 S.Ct. at 1368.
Generally, Florida law provides that parole interviews are to be held every
two years. Fla.Stat. § 947.174(1)(a). In 1997, the Florida legislature amended the
parole statutes to provide that prisoners convicted of certain serious offenses,
including murder, would have parole interviews once every five years. Fla.Stat.
§ 947.174(1)(b).1 This five-year period between interviews applies only if the
Parole Commission “finds that it is not reasonable to expect that parole will be
granted at a hearing during the following years and states the bases for the finding
in writing.” Id.
We do not have any published opinions addressing whether Fla.Stat.
§ 947.174(1)(b) violates the Ex Post Facto Clause, but the Supreme Court has
upheld the constitutionality of a similar California parole statute. California Dep’t
of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
1
In 2010, subsection (1)(b) was amended to increase the time interval between parole
interviews from five years to seven years.
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The statute at issue in Morales permitted California’s parole board to defer parole
hearings for up to three years if the prisoner’s offense involving the taking of a
life, and if the parole board found that it was not reasonable to expect that parole
would be granted at a hearing during the following years. Id. at 503, 115 S.Ct. at
1600. The statute also required the board to explain its decision in writing. Id.The Supreme Court concluded that this statute did not violate the Ex Post Facto
Clause because: (1) it applied only to a narrow class of prisoners “for whom the
likelihood of release on parole is quite remote”; (2) it only affected subsequent
hearings, meaning that it never applied until after an initial hearing had been held;
(3) it required the parole board to make specific findings justifying the deferral,
and to explain its decision in writing. Id. at 510-11, 115 S.Ct. at 1603-04.
In this case, Thorne failed to establish that the five-year interval between
parole hearings carried a significant risk of prolonging his incarceration. Section
947.174 is similar to the California statute that the Supreme Court upheld in
Morales, as it applies only to a narrow group of prisoners, and requires a specific,
written finding that “it is not reasonable to expect that parole will be granted at a
hearing during the following years.” See Fla.Stat. § 947.174(1)(b); Morales, 514
U.S. at 510-11, 115 S.Ct. at 1603-04. Here, the Parole Commission determined
that it was unlikely that Thorne would be eligible for parole prior to his next
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scheduled hearing in 2012 given the nature of his conviction, his status as a parole
violator, and the risk that his release would pose to others. Thus, the five-year
interval between reviews did not carry a significant likelihood of prolonging
Thorne’s incarceration. Accordingly, the district court properly concluded that
Thorne had failed to state an ex post facto claim. See Garner, 529 U.S. at 251,
120 S.Ct. at 1368.
V.
To plead an equal protection claim, a plaintiff must allege that “through
state action, similarly situated persons have been treated disparately.” Thigpen v.
Bibb County, Ga., Sheriff’s Dep’t, 223 F.3d 1231, 1237 (11th Cir. 2000),
abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Supreme Court has
recognized “class of one” equal protection claims where a plaintiff asserts that she
was irrationally discriminated against on an individual basis, rather than as a
member of a particular group. Village of Willowbrook v. Olech, 528 U.S. 562,
564, 120 S.Ct. 1073, 1074, 145 L.Ed.2d 1060 (2000). A plaintiff can establish a
“class of one” claim by showing that he was “intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in
treatment.” Id. at 564, 120 S.Ct. at 1074. “To be ‘similarly situated,’ the
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comparators must be prima facie identical in all relevant respects.” Grider v. City
of Auburn, Ala., 618 F.3d 1240, 1264 (11th Cir. 2010) (quotation and emphasis
omitted).
A plaintiff seeking to bring a procedural due process claim must establish
that: (1) he was deprived of a constitutionally protected liberty or property interest,
(2) through state action, and (3) he was not provided with a constitutionally
adequate process to contest the deprivation. Arrington v. Helms, 438 F.3d 1336,
1347 (11th Cir. 2006). We have explained that Florida’s parole system does not
create a protected liberty interest in parole because the Parole Commission always
has discretion over whether to grant or deny parole. Damiano v. Florida Parole
and Probation Comm’n, 785 F.2d 929, 931-32 (11th Cir. 1986); Staton v.
Wainwright, 665 F.2d 686, 688 (5th Cir. Unit B, 1982).2
Here, Thorne’s amended complaint failed to state an equal protection claim
because it did not show that he was treated differently from similarly-situated
prisoners. Thorne did assert that other prisoners who had been convicted of
murder and who had previous parole violations had received earlier release dates
and were interviewed every two years rather than every five years, but he did not
2
We are bound by decisions issued by a Unit B panel of the former Fifth Circuit. See Stein
v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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show that those other prisoners were similar to him in all relevant respects. For
example, it is unclear whether the other prisoners had been convicted of multiple
separate offenses, whether they had an escalating history of criminal conduct, or
whether their release might cause an unreasonable risk to others, three factors that
the Parole Commission relied upon in Thorne’s case. In short, Thorne’s
allegations of disparate treatment were not detailed enough to raise his right to
relief above a speculative level. See Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
Thorne’s amended complaint also failed to state a procedural due process
claim. As we have explained, Florida’s parole system does not give rise to a
protected liberty interest because the decision on whether to grant parole is left to
the discretion of the Parole Commission. See Damiano, 785 F.2d at 931-32;
Staton, 665 F.2d at 688. Although some of Florida’s procedures regarding parole
have changed since Damiano and Staton were decided, the Parole Commission
still has substantial discretion over whether to grant or deny parole. Cf. Fla.Stat.
§ 947.18. As Thorne’s complaint did not allege a violation of a protected liberty
interest, the district court properly dismissed his due process claim. See
Arrington, 438 F.3d at 1347.
Accordingly, after review of the record and the parties’ briefs, we affirm the
dismissal of Thorne’s complaint.
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AFFIRMED.
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