William M. Taylor v. Milton E. Nix, Jr. ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-10629 JUNE 27, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-02462-CV-TCB-1
WILLIAM M. TAYLOR,
Plaintiff-Appellant,
versus
MILTON E. NIX, JR.,
Chairman, State Board of Pardons and Paroles,
GARLAND R. HUNT,
Vice-Chairman,
GARDFIELD HAMMONDS, JR.,
EUGENE P. WALKER,
L. GALE BUCKNER,
Members,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 27, 2007)
Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Appellant William Taylor (“Taylor”), a Georgia state prisoner, appeals
pro se the district court’s dismissal, pursuant to 28 U.S.C. § 1915A, of his
substantive due process claim, as well as the district court’s order granting
summary judgment for the five named members of the Georgia State Board of
Pardons and Paroles (“Board”) on the remaining claims asserted in his second
amended complaint. Taylor also appeals the district court’s denial of his motion to
compel the discovery of certain privileged documents, and its failure to exercise its
equitable powers to force the Board to grant him parole. After reviewing the
record and reading the parties’ briefs, we affirm the judgment of dismissal.
I. Substantive Due Process Claim
“We review a district court’s sua sponte dismissal of a [claim] for failure to
state a claim for relief under § 1915A(b)(1) de novo.” Harden v. Pataki, 320 F.3d
1289, 1292 (11th Cir. 2003). Pro se briefs, such as Taylor’s appellate brief, are
entitled to liberal construction. Cofield v. Ala. Public Serv. Comm’n, 936 F.2d 512,
514 n.2 (11th Cir. 1991).
The Prison Litigation Reform Act of 1995 (“PLRA”) requires a district court
to screen prisoner civil rights actions. 28 U.S.C. § 1915A(a). A district court must
“review, before docketing, if feasible or, in any event, as soon as practicable after
2
docketing, a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.” Id. A
district court must dismiss the claim if it “is frivolous, malicious, or fails to state a
claim upon which relief may be granted.” 28 U.S.C. 1915A(b)(1).
In this case, the district court dismissed Taylor’s due process claim for
failure to state a claim upon which relief could be granted. A complaint fails to
state a claim upon which relief may be granted when “‘it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.’” Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th
Cir. 2001) (citation omitted).
Section 1983 does not create any substantive rights. Almand v. DeKalb
County, Ga., 103 F.3d 1510, 1512 (11th Cir. 1997). “[I]t merely provides a
remedy for deprivations of federal statutory and constitutional rights.” Id. To
sustain a cause of action under § 1983, a plaintiff must prove that he was deprived
of a federal right by a person acting under color of state law. Griffin v. City of
Opa- Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
The Due Process Clause provides that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. C ONST.
amend. XIV, § 1. “The substantive component of the Due Process Clause protects
3
those rights that are ‘fundamental,’ that is, rights that are ‘implicit in the concept of
ordered liberty.’” Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002)
(citations omitted). “Substantive due process rights are created by the
Constitution, and ‘no amount of process can justify [their] infringement.’” Id.
(citation omitted). In order to have a substantive due process claim, Taylor must
have a substantive right created by the Constitution.
In analyzing a substantive due process claim, a court must initially craft a
“‘careful description of the asserted right.’” Doe v. Moore, 410 F.3d 1337, 1343
(11th Cir. 2005) (citations omitted). Second, a court “must determine whether the
asserted right is one of those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they
were sacrificed.” Id. (citations and internal quotation marks omitted).
“[T]here is no federal constitutional right to parole.” Jones v. Ray, 279 F.3d
944, 946 (11th Cir. 2001) (citing Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104 (1979)).
“[C]onduct by a government actor will rise to the level of a substantive due
process violation only if the act can be characterized as arbitrary or conscience
shocking in a constitutional sense.” Waddell v. Hendry County Sheriff’s Office,
4
329 F.3d 1300, 1305 (11th Cir. 2003). “‘[O]nly the most egregious official
conduct can be said to be arbitrary in the constitutional sense.’” Id. (citation
omitted).
After reviewing the record, we conclude that the district court did not err in
dismissing Taylor’s substantive due process claim.
Liberally construing his appellate brief, Taylor alleges that but for the
Board’s arbitrary and capricious actions he would have been paroled. Taylor,
however, cites no caselaw holding that a life-sentenced prisoner has a right to
parole, and, to the contrary, there is no federal constitutional right to parole. See
Jones, 279 F.3d at 946. He also cites no caselaw recognizing a substantive due
process violation in a failure to follow certain procedures in considering a parole
request. Accordingly, Taylor did not assert a cognizable substantive due process
claim in his first complaint, and we conclude that the district court properly
dismissed it.1
Also, to the extent that Taylor’s appellate brief may be liberally construed to
allege that the district court erred in failing to rule on his motion for
1
Taylor did not argue before the district court and, even liberally construing his
appellate brief, does not argue on appeal that the Board violated his due process rights by relying
on erroneous or improper documents in his clemency file in denying him parole. Cf. Monroe v.
Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991). Therefore, Taylor has waived any error with
respect to this issue. See United States v. Silvestri, 409 F.3d 1311, 1338 n.18 (11th Cir.), cert.
denied, 126 S. Ct. 772 (2005).
5
reconsideration of the dismissal of his due process claim, such an argument is
without merit. The district court did rule on this motion, concluding that it was
moot because Taylor filed a second amended complaint – which did not include a
substantive due process claim – before it could rule on the merits of his motion for
reconsideration.
II. Denial of Motion to Compel
We review the denial of a plaintiff’s motion to compel discovery for an
abuse of discretion. Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821,
826 (11th Cir. 2000).
Under the Federal Rules of Civil Procedure, a party “may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any
party.” Fed.R.Civ.P. 26(b) (emphasis added).
Under Georgia law, “[a]ll information, both oral and written, received by the
members of the board in the performance of their duties under this chapter and all
records, papers, and documents coming into their possession by reason of the
performance of their duties under this chapter shall be classified as confidential
state secrets until declassified by a resolution of the board passed at a duly
constituted session of the board.” O.C.G.A. § 42-9-53(b).
The record demonstrates that the district court, after reviewing the contested
6
documents in camera, explicitly found that they were subject to the confidential
state secrets privilege. Rather than challenging this ruling on appeal, however,
Taylor exclusively argues in his appellate brief that he was entitled to the
documents because they were relevant to his retaliation claim. By virtue of this,
we conclude that Taylor has waived any error with respect to the district court’s
finding that the privilege applied.2 See Silvestri, 409 F.3d at1338 n.18. Thus, even
assuming arguendo that the documents were relevant to one or more of his claims,
they were still subject to the confidential state secrets privilege and, therefore, were
not discoverable pursuant to Fed.R.Civ.P. 26(b).3
III. Ex Post Facto Claim
We review de novo a district court’s grant of summary judgment. Twin City
Fire Ins. Co., Inc. v. Ohio Cas. Ins. Co., Inc., 480 F.3d 1254, 1258 (11th Cir.
2007). Similarly, “[w]e review de novo the district court’s interpretation and
application of the statute of limitations.” Brown v. Georgia Bd. of Pardons &
2
Although Taylor argued before the district court that the Board waived this privilege by
including some of the documents in its summary judgment brief, he does not present any such
argument on appeal, nor does he cite to any decisions involving waiver of a privilege.
Consequently, Taylor has abandoned his waiver claim on appeal. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument that has not
been briefed before the court is deemed abandoned and its merits will not be addressed”).
3
We also conclude that Taylor’s alternative argument, that the Board only produced six
of the contested documents and withheld other documents, is unsupported by the record. The
Board produced more than six documents for the district court’s in camera review, and there is
nothing in the record to suggest that the Board withheld any other documents that were found in
Taylor’s clemency file.
7
Paroles, 335 F.3d 1259, 1261 n.2 (11th Cir. 2003).
Summary judgment is appropriate when “there is no genuine issue as to any
material fact” and “the moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). A court “should view the evidence and any inferences that
may be drawn in the light most favorable to the non-moving party.” Porter v. Ray,
461 F.3d 1315, 1320 (11th Cir.), cert. denied, 127 S. Ct. 516 (2006).
“‘Federal courts apply their forum state’s statute of limitations for personal
injury actions to actions brought pursuant to 42 U.S.C. § 1983.’” Lovett v. Ray,
327 F.3d 1181, 1182 (11th Cir. 2003) (citation omitted). Georgia’s statute of
limitations for personal injury actions, and, thus, the statute of limitations for a
§ 1983 claim arising out of events occurring in that state, is two years. Id.
“Federal law determines when the statute of limitations begins to run.”
Lovett, 327 F.3d at 1182. The statute of limitations ordinarily “‘does not begin to
run until the facts which would support a cause of action are apparent or should be
apparent to a person with a reasonably prudent regard for his rights.’” Id. (citation
omitted).
“‘The critical distinction in the continuing violation analysis is whether the
plaintiff complains of the present consequence of a one time violation, which does
not extend the limitations period, or the continuation of that violation into the
8
present, which does.’” Lovett, 327 F.3d at 1183 (citation omitted).
In Lovett, we addressed a similar claim that the Georgia Board of Pardons
and Paroles’s decision to delay an inmate’s parole hearing, pursuant to a newly
implemented Board policy, constituted a continuing violation of his constitutional
rights against Ex Post Facto laws. Id. We ultimately concluded that the decision
not to consider an inmate for parole again until 2006 “was a one time act with
continued consequences, and the limitations period is not extended.” Id.
Following Lovett, we determined that an inmate could not rely on the
continuing violation doctrine to save his ex post facto claim, where he had been
notified in 1995 of a new Board policy allowing a parole reconsideration set-off for
up to eight years, but had waited until 2002 to file his lawsuit, even though the
Board had denied him parole as recently as 2001. See Brown 335 F.3d at 1261.
We also rejected the argument that each setting of a parole hearing
constituted a distinct and separate injury, holding:
Each time Brown’s parole reconsideration hearing is set, it does not
amount to a distinct and separate injury. See, e.g., Smith v. Grubbs, 42
Fed.Appx. 370, 371 (10th Cir. 2002) (unpublished). Rather, Brown’s
injury, to the extent it ever existed, was when the Georgia Parole
Board applied its new policy, eliminating the requirement of parole
review every three years for Brown, retroactively. It is the decision in
1995 that forms a potential basis for Brown's claim. It was also at this
point that Brown could have discovered the factual predicate of his
claim. The successive denials of parole do not involve separate factual
predicates and therefore do not warrant separate statute-of-limitations
9
calculations.
Id. at 1261-62 (emphasis added).
Taylor initially learned in 1996 that the Board had implemented a new
policy requiring that life-sentenced offenders, like himself, would be reviewed for
parole at least once every eight years, and not on an annual basis.4 Taylor,
however, did not file his complaint until 2005, more than two years later. Thus, his
ex post facto claim was untimely, and the continuing violation doctrine cannot save
it.5 See Lovett, 327 F.3d at 1183; Brown, 335 F.3d at 1261.
IV. Retaliation Claim 6
“The First Amendment forbids prison officials from retaliating against
prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,
1248 (11th Cir. 2003). “A prisoner can establish retaliation by demonstrating that
4
We note that, contrary to Taylor’s argument on appeal, the Board’s decision to adopt
the contested parole policy constituted the factual predicate of this ex post facto claim. See
Brown, 335 F.3d at 1261-62.
5
Even liberally construing his appellate brief, Taylor does not argue that the district court
erred in refusing to address expressly his ex post facto claim based on the Georgia Constitution,
or that it abused its discretion in failing to exercise supplemental jurisdiction over this state law
claim, nor does he cite any Georgia law or statutes. Therefore, he has waived any error with
respect to this issue. See Silvestri, 409 F.3d at 1338 n.18.
6
We reject the Board’s argument that this claim is moot because all of the litigation
documents were removed from Taylor’s file before his parole hearing in 2006. As the district
court explained, removal of the litigation documents from Taylor’s file “does not necessarily
mean that the Board did not or could not in the future retaliate against [him] based on the
Board’s knowledge of the contents of these documents.”
10
the prison official’s actions were ‘the result of his having filed a grievance
concerning the conditions of his imprisonment.’” Id. (quoting Wildberger v.
Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989)). Likewise, the First Amendment
insulates from retaliation a prisoner who engages in a protected activity on behalf
of other inmates. Adams v. James, 784 F.2d 1077, 1081 (11th Cir. 1986).
If a defendant meets the initial burden of demonstrating the absence of a
genuine issue of material fact, a plaintiff must “establish[] a causal relationship”
between his complaints and the alleged retaliatory actions in order to survive a
summary judgment motion. Farrow, 320 F.3d at 1249.
“‘[C]onclusory allegations without specific supporting facts have no
probative value.’” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.
2000) (citation omitted). Moreover, at least in the employment context, we have
held that, “in the absence of any other evidence of causation, a three and one-half
month proximity between a protected activity and an adverse employment action is
insufficient to create a jury issue on causation.” Drago v. Jenne, 453 F.3d 1301,
1308 (11th Cir. 2006).
With respect to Taylor’s 2004 parole hearing, there is no evidence of causal
relationship between his protected activities and the denial of his parole at that
time. Cf. Farrow, 320 F.3d at 1249. The undisputed evidence demonstrates that
11
the Board actually granted Taylor parole in 1988, three years after the litigation
documents were prepared. Taylor has offered no explanation on why the Board
would grant him parole within three years of the preparation of the litigation
documents, but then retaliate against him for these documents in 2004, nearly
sixteen years later, by denying him parole at that hearing.
Moreover, given the temporal remoteness of the preparation of the litigation
documents and the 2004 parole hearing, we conclude that these documents do not
have any probative value of retaliation. Cf. Drago, 453 F.3d at 1308.
Also, while the Board adhered to a policy of separating litigation files from
clemency files, Taylor never established that written threats leveled against prison
officials could not be considered during a parole hearing. Thus, even assuming
arguendo that his 2004 parole denial was based, in part, on these threats, Taylor
did not demonstrate the Board acted unlawfully in considering these threats when it
denied him parole.
Finally, while Taylor asserts on appeal that he assisted other inmates in
filing grievances and lawsuits against the Board, there is no evidence in the record
to support this allegation, or to provide a time-frame as to when these events
allegedly occurred. Accordingly, these conclusory allegations do not provide any
probative evidence of retaliation. Cf. Leigh, 212 F.3d at 1217.
12
With respect to his parole denial in 2006 and the extension of his next
tentatively set parole hearing to November 2014, Taylor has failed to show that
these actions were based, at least in part, on retaliatory motives. The Board
presented an affidavit from Masters, who explained that Taylor’s unscheduled
parole hearing in 2006 was not predicated on retaliatory motives. Instead, Masters
indicated that she discovered during the course of the present lawsuit certain
litigation files which were improperly included in Taylor’s clemency file, and so
she removed those files and then resubmitted his file in 2006, earlier than
tentatively scheduled, to ensure that he received a proper parole review.
By contrast, Taylor offered nothing to contradict Masters’s affidavit, except
an unsupported argument that, because that the 2006 parole hearing was conducted
approximately five months after he filed the present lawsuit, retaliatory motive
must be presumed. This unsupported accusation was not sufficient to create a
genuine issue of material fact, however. Cf. Leigh, 212 F.3d at 1217.
In addition, Taylor did not present any evidence to contradict or to
undermine the Board’s proffered reason for denying him parole – that his release
“would not be compatible with the welfare of society . . . due to the serious nature
of the offense(s) for which [he] [was] convicted.” The undisputed evidence
showed that Taylor was originally convicted of two counts of kidnaping a boy, and
13
upon his parole on those convictions, he sodomized and molested another boy, and
upon release from those convictions, he kidnaped a third boy. Additionally, while
in prison, Taylor wrote threatening letters to prison officials.
Finally, it is undisputed that Taylor’s next parole hearing currently set in
2014 is within eight years of his latest parole hearing in 2006, as required by Board
policy. Thus, the Board scheduled Taylor’s next parole hearing within the time
frame articulated in the amended Board policy.
V. Equal Protection Claim
The Equal Protection Clause provides, in relevant part, that “[n]o State shall
make or enforce any law which shall . . . deny to any person within its jurisdiction
the equal protection of the laws.” U.S. C ONST., amend. XIV, § 1. We have
recognized “that an inmate may challenge the denial of pardon or parole on equal
protection grounds.” Fuller v. Georgia State Bd. Of Pardons & Paroles, 851 F.2d
1307, 1310 (11th Cir. 1988).
The Equal Protection Clause is implicated in “class of one” claims, the type
of claim alleged by Taylor, “‘where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.’” Campbell v. Rainbow City, Ala.,
434 F.3d 1306, 1314 (11th Cir.), cert. denied, 127 S. Ct. 559 (2006) (citation
14
omitted). “A showing that two projects were similarly situated requires some
specificity.” Id. We have cited with approval the decision of Racine Charter One,
Inc. v. Racine Unified School Dist., 424 F.3d 677 (7th Cir. 2005), which concluded
that “[t]o be considered ‘similarly situated,’ comparators must be prima facie
identical in all relevant respects.” Racine, 424 F.3d at 680 (quoted in Campbell,
434 F.3d at 1314).
“[A]n unexplained statistical showing of disparate racial treatment by a
single entity over a period of time [may] raise the inference of an equal protection
violation.” Fuller, 851 F.2d at 1310. However, “exceptionally clear proof” of
discrimination as compared to similarly situated comparators is required. Id.
In Fuller, an inmate attempted to use unexplained statistics to prove that he
was discriminated against when compared to similarly situated white inmates who
were paroled. Id. We ultimately rejected the inmate’s evidence as irrelevant,
noting that “[t]he decision to grant or deny parole is based on many factors such as
criminal history, nature of the offense, disciplinary record, employment and
educational history, etc. Fuller [the inmate] does not show himself to be similarly
situated, considering such factors, with any inmates who were granted parole.” Id.
After reviewing the record, we conclude that the district court here did not
err in granting summary judgment for the Board on Taylor’s equal protection
15
claim.
Taylor attempts to use statistical calculations to prove that there was a “huge
disparity” between the amount of time that he has been required to serve in prison
as compared to the amount of time served by other “parole violators,” and paroled
life-sentenced inmates serving sentences for murder, rape, armed robbery,
kidnaping, or aggravated sodomy. However, these unexplained statistics do not
provide “exceptionally clear proof” of discrimination as compared to similarly
situated comparators. See Fuller, 851 F.2d at 1310. Taylor’s comparator
categories – “parole violators,” and paroled life-sentenced inmates serving
sentences for “murder,” “rape,” “armed robbery,” “kidnaping,” or “aggravated
sodomy” – are extremely broad, and do not demonstrate that his self-identified
comparators are “prima facie identical in all relevant respects.” Cf. Racine Charter
One, Inc., 424 F.3d at 680 (persuasive authority) (citation omitted). These
categories do not indicate that any of the comparators were recidivists who had
been convicted of the same crimes of which Taylor was convicted (some of which
were sexually based and others which were not), nor that all of their crimes
involved minor children. Futher, Taylor does not explain whether these
comparators had been paroled a number of times previously and had re-offended,
or whether they threatened prison officials while incarcerated.
16
Further, even assuming arguendo that Taylor could demonstrate that he had
been intentionally treated differently from others similarly situated, he has not
shown that the Board acted irrationally in doing so. Taylor’s criminal history,
recidivism, and threats against prison officials provided a rational basis for the
Board to find that parole “would not be compatible with the welfare of society.”
Accordingly, we conclude that the Board was entitled to summary judgment
on Taylor’s “class of one” equal protection claim. See Campbell, 434 F.3d at
1314.
For the foregoing reasons, we affirm the judgment of dismissal.7
AFFIRMED.
7
We also conclude that the district court did not abuse its discretion in failing to exercise
its equitable powers to force the Board to grant Taylor parole.
17