Michael W. Harrell v. Chairman, Florida Parole Commission , 479 F. App'x 234 ( 2012 )


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  •                                                                        [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    JUNE 21, 2012
    No. 11-13659
    Non-Argument Calendar                 JOHN LEY
    CLERK
    ________________________
    D.C. Docket No. 4:10-cv-00281-GRJ
    MICHAEL W. HARRELL,
    llllllllllllllllllllllllllllllllllllllll                                     Plaintiff-Appellant,
    versus
    FLORIDA PAROLE COMMISSION,
    llllllllllllllllllllllllllllllllllllllllDefendant,
    CHAIRMAN, FLORIDA PAROLE COMMISSION,
    VICE CHAIRMAN, FLORIDA PAROLE COMMISSION,
    COMMISSIONER, FLORIDA PAROLE COMMISSION,
    llllllllllllllllllllllllllllllllllllllll                                Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (June 21, 2012)
    Before DUBINA, Chief Judge, EDMONDSON and BARKETT, Circuit Judges.
    PER CURIAM:
    Appellant Michael W. Harrell, a Florida state prisoner proceeding pro se,
    appeals the district court’s dismissal for failure to state a claim of his 42 U.S.C.
    § 1983 civil rights complaint against the Florida Parole Commission
    (“Commission”) and its members for violations of his rights to due process, equal
    protection, and protection against ex post facto laws. On appeal, Harrell argues
    that the district court erred in dismissing his complaint because he alleged facts
    sufficient to support his claims that the Commission (1) acted arbitrarily and
    capriciously in determining his presumptive parole release date (“PPRD”) in
    violation of his due process rights, (2) categorically denied parole to prisoners
    with mandatory minimum sentences in violation of his rights to equal protection,
    and (3) retroactively increased his punishment by denying him the possibility of
    parole.
    We review de novo the dismissal of a complaint under Fed. R. Civ. P.
    12(b)(6) for failure to state a claim. Speaker v. U.S. Dep’t of Health & Human
    Servs. Ctrs. for Disease Control & 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
    2
    dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell
    Atl. 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. 662
    , ___, 129 S.
    Ct. 1937, 1949, 
    173 L. Ed. 2d 868
    (2009). The complaint must include enough
    facts “to raise a right to relief above the speculative level.” 
    Twombly, 550 U.S. at 555
    , 127 S. Ct. at 1965. “Pro se pleadings are held to a less stringent standard
    than pleadings drafted by attorneys and will, therefore, be liberally construed.”
    See Tannenbaum v. United States, 
    148 F.3d 1262
    , 1263 (11th Cir. 1998) (per
    curiam) (addressing a pro se motion to vacate under 28 U.S.C. § 2255).
    An individual may bring a private cause of action under 42 U.S.C. § 1983
    against any person who, acting under color of state law, abridges rights created by
    the Constitution and laws of the United States. Maine v. Thiboutot, 
    448 U.S. 1
    ,
    4–5, 
    100 S. Ct. 2502
    , 2504–05, 
    65 L. Ed. 2d 555
    (1980). A claim challenging
    parole procedures may be brought under § 1983 if success on that claim would not
    automatically reduce the defendant’s terms of imprisonment. Wilkinson v. Dotson,
    
    544 U.S. 74
    , 81–82, 
    125 S. Ct. 1242
    , 1248, 
    161 L. Ed. 2d 253
    (2005). Claims that
    would entitle a prisoner to a new parole eligibility review or parole hearing are
    3
    cognizable under § 1983. See 
    id. The Due Process
    Clause of the Fourteenth Amendment provides that no
    state shall “deprive any person of life, liberty, or property, without due process of
    law.” U.S. Const. amend. XIV, § 1. Generally, due process is violated when the
    state deprives a person of a protected liberty interest through a constitutionally
    inadequate process. Arrington v. Helms, 
    438 F.3d 1336
    , 1347 (11th Cir. 2006).
    There is no federal constitutional right to parole. Greenholtz v. Inmates of Neb.
    Penal & Corr. Complex, 
    442 U.S. 1
    , 7, 
    99 S. Ct. 2100
    , 2104, 
    60 L. Ed. 2d 668
    (1979). However, a state may establish a protected liberty interest in parole by
    creating a legitimate expectation of parole. Jones v. Ray, 
    279 F.3d 944
    , 946 (11th
    Cir. 2001) (per curiam). Florida’s parole statutes do not create a liberty interest
    because the Florida Parole Commission retains discretion over whether to grant or
    deny parole. Damiano v. Fla. Parole & Prob. Comm’n, 
    785 F.2d 929
    , 931–32
    (11th Cir. 1986) (per curiam). Nonetheless, even without a protected liberty
    interest, a due process claim may be available if the Commission engaged in
    “flagrant or unauthorized action” or treated a prisoner “arbitrarily and
    capriciously” in making a parole determination, such as by knowingly or
    admittedly relying on false information. Monroe v. Thigpen, 
    932 F.2d 1437
    ,
    1441–42 (11th Cir. 1991); Thomas v. Sellers, 
    691 F.2d 487
    , 489 (11th Cir. 1982)
    4
    (per curiam).
    However, the Commission need not specify the particular evidence on
    which it relied in making a parole determination. 
    Greenholtz, 442 U.S. at 15
    , 99
    S. Ct. at 2108; see also Slocum v. Ga. State Bd. of Pardons & Paroles, 
    678 F.2d 940
    , 942 (11th Cir. 1982) (holding that there is no due process right to inspect a
    parole file). Moreover, prisoners do not state a due process claim by simply
    asserting that erroneous information might have been used during their parole
    consideration. See 
    Slocum, 678 F.2d at 941
    n.1, 942 (affirming dismissal of
    plaintiff’s due process claim that the parole board considered erroneous
    information in denying him parole).
    The Equal Protection Clause of the Fourteenth Amendment provides that
    “[n]o State shall . . . deny to any person within its jurisdiction the equal protection
    of the laws.” U.S. Const. amend. XIV, § 1. A prisoner asserting an equal
    protection claim must demonstrate that “(1) he is similarly situated with other
    prisoners who received more favorable treatment; and (2) his discriminatory
    treatment was based on some constitutionally protected interest such as race.”
    
    Jones, 279 F.3d at 946–47
    (internal quotation marks omitted).
    The U.S. Constitution prohibits states from enacting ex post facto laws that
    retroactively increase the penalty for a crime after it has been committed. U.S.
    5
    Const. art. I, § 10, cl. 1; Garner v. Jones, 
    529 U.S. 244
    , 249–50, 
    120 S. Ct. 1362
    ,
    1367, 
    146 L. Ed. 2d 236
    (2000); see also United States v. De La Mata, 
    266 F.3d 1275
    , 1286 (11th Cir. 2001) (stating that “[t]he ex post facto clause prohibits the
    enactment of statutes which . . . make more burdensome the punishment for a
    crime”).
    Based on our review of the record, we conclude that Harrell has failed to
    allege facts sufficient to state facially plausible claims for relief. See Iqbal, 556
    U.S. at ___, 129 S. Ct. at 1949. Harrell’s due process claim was properly
    dismissed because the decision whether to grant or deny parole is within the
    Commission’s discretion, and Harrell did not plausibly allege that the Commission
    acted arbitrarily and capriciously in denying him parole. As to his equal
    protection claim, Harrell neither alleged that he was treated differently than
    similarly situated comparators nor that the alleged differential treatment was based
    on a constitutionally protected interest. Finally, Harrell’s ex post facto claim was
    properly dismissed because parole is a discretionary decision of the Commission
    and Harrell’s punishment, two consecutive life terms of imprisonment, was not
    increased by the denial of parole. Accordingly, we affirm the district court’s
    judgment of dismissal.
    6
    AFFIRMED.1
    1
    Harrell’s motion requesting reconsideration of his previous request for record assistance
    is DENIED.
    7