Gene Smith v. Ga. Board of Pardons and Paroles

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-12186 ELEVENTH CIRCUIT
DECEMBER 21, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00117-CV-CAM-1
GENE SMITH,
Plaintiff-Appellant,
versus
GEORGIA BOARD OF PARDONS AND PAROLES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 21, 2005)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Georgia prisoner Gene Smith, proceeding pro se, appeals the 28 U.S.C.
§ 1915A dismissal of his 42 U.S.C. § 1983 complaint against the Georgia Board of
Pardons and Paroles. Smith’s complaint alleged an Ex Post Facto Clause violation
because the Board’s application of an amended parole reconsideration rule, Ga.
Comp. R. & Regs. 475-3-.05 (2001), changed the frequency of parole hearings
from one year to eight years. Smith also appeals the district court’s imposition of a
filing fee after it granted him in forma pauperis (IFP) status. We affirm in part,
and vacate and remand in part.
I. DISCUSSION
A. Dismissal of Complaint
In his complaint, Smith alleged generally that application of the eight-year
set-off rule violated the Ex Post Facto clause. He did not allege facts specific to
his case to support this allegation.
On appeal, Smith asserts current application of the eight-year set-off rule
produces a sufficient risk his sentence will be longer than it would be if the Board
reconsidered him for parole more frequently. Smith contends his bad health and
age, currently 60 years, may lead him to expire in prison before the next scheduled
hearing. He further contends the eight-year set-off prevents the Board from
reviewing his institutional conduct, achievements, letters of support, or any new
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information, and points out the likelihood of parole changes year to year. He
asserts he was given a life sentence with the possibility of parole and was not
sentenced to life without parole or to death, but if he must wait eight years for
reconsideration, his sentence will be equivalent to those sentences and his
punishment more severe.
The Prison Litigation Reform Act (PLRA) provides “[t]he court shall
review, before docketing, if feasible or, in any event, as soon as practicable after
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.” 28 U.S.C.
§ 1915A(a). “On review, the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint—(1) is frivolous,
malicious, or fails to state a claim upon which relief may be granted . . . .” 28
U.S.C. § 1915A(b).
An action is considered “frivolous if it is without arguable merit either in
law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). Whereas a
complaint fails to state a claim 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.”
Flint v. ABB, Inc., 337 F.3d 1326, 1328–29 (11th Cir. 2003).
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To violate the Ex Post Facto Clause, the application of an amended statute
must inflict a greater punishment than the law annexed to the crime when
committed. Lynce v. Mathis, 117 S. Ct. 891, 895 (1997). The issue is whether
application of the amended statute creates “a sufficient risk of increasing the
measure of punishment attached to the covered crimes.” Garner v. Jones, 120 S.
Ct. 1362, 1367 (2000). “[N]ot every retroactive procedural change creating a risk
of affecting an inmate’s terms or condition of confinement is prohibited.” Id.However,
[t]he Supreme Court’s opinion in [Garner] does not
resolve the issue of whether the amendment to Rule
475-3-.05(2), in its operation, violates the Ex Post Facto
Clause when applied to inmates who had been entitled to
more frequent reconsideration hearings when they
committed their crimes. Rather, it requires the district
court to consider evidence of the general operation of the
Georgia parole system and any other evidence a prisoner
challenging the regulation may produce that the amended
parole regulation, as applied to his own sentence, created
a significant risk of increasing his punishment. Thus, it
appears that an analysis of claims that [Rule] 475-3-.05
violates the Ex Post Facto Clause when applied to
inmates who had been entitled to more frequent parole
reconsideration at the time they committed their crimes
must be made on a case-by-case basis.
Harris v. Hammonds, 217 F.3d 1346, 1350 (11th Cir. 2000).
The general allegation before the district court was not sufficient to require
the district court to do an individualized assessment as set out in Harris. On
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appeal, however, Smith has raised more specific allegations which may or may not
be sufficient to show a violation of the Ex Post Facto clause, but are sufficient for
an individualized inquiry into Smith’s case. “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). Thus, we vacate and remand on this issue so Smith may have an
opportunity to file a motion to amend his complaint and add the more specific
allegations.
B. Filing Fee
Next, Smith asserts he should not have to pay the $255 filing fee because the
district court granted him permission to proceed IFP. He argues his prison records
show he has no money, and the district court made “an obvious mistake” when it
granted his motion but still directed him to pay the fee.
“We review the interpretation of the filing fee provision of the PLRA de
novo.” Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Section 1915(b)
of the PLRA requires, inter alia, that a prisoner bringing a civil action IFP must
pay the full filing fee. 28 U.S.C. § 1915(b). “Nevertheless, the PLRA provides
that ‘[i]n no event shall a prisoner be prohibited from bringing a civil action or
appealing a civil or criminal judgment for the reason that the prisoner has no assets
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and no means by which to pay the initial partial filing fee.’ Accordingly, the
impecunious defendant, although liable for the entire fee, may pay his or her entire
fee in installments.” Wilson v. Sargent, 313 F.3d 1315, 1318 (11th Cir. 2002)
(citations omitted). The initial filing fee is computed by the district court based on
monthly averages of the prisoner’s trust account, and should the prisoner have a $0
balance in his account, then the initial filing fee is set at zero. See id. at 1319.
Although Smith logically argues the requirement of an IFP plaintiff to pay a
court’s filing fee seems contrary, the language of the statute is plain. See 28 U.S.C.
§ 1915(b). Therefore, the district court did not err in charging the fee and in its
imposition of the partial initial filing fee and installment plan for the remainder.
II. CONCLUSION
We affirm the district court’s imposition of the filing fee pursuant to
§ 1915(b) of the PLRA. However, we vacate the district court’s dismissal of
Smith’s complaint, and remand so Smith may be given an opportunity to file a
motion to amend his complaint adding the more specific allegations.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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