Maynard v. Fallin

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS April 29, 2014

TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

LARRY DON WESLEY MAYNARD,

Plaintiff-Appellant,

v.
No. 13-6239
GOVERNOR MARY FALLIN; (D.C. No. 5:13-CV-00972-W)
ROBERT PATTON; * TERRY JENKS; (W.D. Okla.)
DR. MARC DREYER; LYNNELL
HARKINS; CURRIE BALLARD;
DAVID MOORE; STATE OF
OKLAHOMA,

Defendants-Appellees.

ORDER AND JUDGMENT **

Before KELLY, HOLMES, and MATHESON, Circuit Judges.

*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Robert
Patton, the current Director of the Oklahoma Department of Corrections
(“ODOC”), is automatically substituted as Defendant in this case.
**
After examining the briefs and appellate record, this panel has
decided unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
 Larry Dawn Wesley Maynard, an Oklahoma state prisoner proceeding pro

se, 1 appeals from the district court’s dismissal of his complaint against Governor

Mary Fallin, ODOC Director Robert Patton, several members of Oklahoma’s

Pardon and Parole Board (“the Board”), and the State of Oklahoma (hereinafter,

collectively, “Defendants”), wherein he alleged violations under 42 U.S.C. § 1983

and Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

dimissal order, but remand the case for the court to amend the judgment to

dismiss the case with prejudice, and dismiss Mr. Maynard’s application for a

certificate of appealability (“COA”).

I

Following a 1991 jury trial, Mr. Maynard was convicted of shooting with

intent to kill in Osage County, Oklahoma. See Maynard v. Boone, 468 F.3d 665,

667–68 (10th Cir. 2006) (noting Mr. Maynard’s “life sentence . . . arising from a

crime that occurred in 1988”). He has been incarcerated within the ODOC at all

times relevant to this action. Mr. Maynard professes to suffer from “sever[e]”

mental illness. Aplt. Combined Br. at 8; see Maynard, 468 F.3d at 678 (noting in

collateral proceeding that “[the] case [was] especially difficult because of

Maynard’s history of mental illness”).

1
Because Mr. Maynard appears pro se, we afford his filings a liberal
construction. See Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010); Yang
v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

2
 When Mr. Maynard was convicted, Oklahoma’s Forgotten Man Act obliged

the Board to consider “every inmate . . . for parole on or before the expiration of

one-third of his maximum sentence.” Shirley v. Chestnut, 603 F.2d 805, 806

(10th Cir. 1979) (per curiam). The Oklahoma legislature repealed that statute in

1997 and replaced it with the Truth in Sentencing Act, which provides that “[f]or

a crime committed prior to July 1, 1998, any person in the custody of the [ODOC]

shall be eligible for consideration for parole . . . [when he has] completed serving

one-third (1/3) of the sentence.” Okla. Stat. tit. 57, § 332.7(A)(1). “Thereafter

the person shall not be considered more frequently than once every three (3)

years . . . .” Id. § 332.7(D)(2); see Traylor v. Jenks, 223 F. App’x 789, 790 (10th

Cir. 2007) (“Under [§ 332.7], a person who committed a violent crime before July

1, 1998, and has been denied parole, is eligible for reconsideration at least once

every three years.”). A prisoner generally receives “jacket review,” see, e.g.,

Taylor v. Hargett, 203 F.3d 836, 2000 WL 135172, at *1 (10th Cir. 2000) (per

curiam) (unpublished) (internal quotation marks omitted), rather than an in-person

hearing, when the Board reconsiders his application for parole.

Mr. Maynard voiced his displeasure with § 332.7 on September 10, 2013,

by filing a § 1983 action in the Western District of Oklahoma, seeking damages

and prospective injunctive relief. 2 He specifically alleged in his complaint that:

2
Although the caption of Mr. Maynard’s complaint does not specify
the capacity in which he sues Defendants, the body of the document evinces his
(continued...)

3
(1) § 332.7 violates the Ex Post Facto Clauses of the United States and Oklahoma

Constitutions; 3 (2) in enforcing § 332.7, Defendants violated his rights under the

ADA; and (3) Defendants conspired to apply § 332.7 to deny him an annual

“personal appearance” before the Board. R. at 21 (Supporting Br. to Compl.,

filed Sept. 10, 2013) (capitalization altered).

On initial screening pursuant to 28 U.S.C. § 1915A(a), a magistrate judge

issued a report and recommendation, advising that the complaint should be

dismissed without prejudice because Mr. Maynard had stated no actionable

2
(...continued)
intent to (1) sue Defendants individually for damages, and (2) obtain injunctive
relief against Defendants in their official capacities. Both avenues are
permissible under these circumstances. See Pahls v. Thomas, 718 F.3d 1210,
1225 (10th Cir. 2013) (“[O]fficials may be liable in their individual capacities for
damages.”); Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 631 (10th Cir.
1998) (“[A] suit against a state official in his or her official capacity seeking
prospective injunctive relief is not . . . against the state for Eleventh Amendment
purposes.”). However, our agreement with the district court’s finding of no
underlying constitutional violation makes clear that Mr. Maynard is entitled to no
such relief.
3
The wording of the federal and state Ex Post Facto Clauses is “nearly
identical.” Starkey v. Okla. Dep’t of Corr., 305 P.3d 1004, 1021 (Okla. 2013).
As a result, the Oklahoma courts typically interpret their state clause “consistent
with federal jurisprudence” construing the cognate clause in the U.S.
Constitution. See, e.g., Murphy v. State, 281 P.3d 1283, 1294 (Okla. Crim. App.
2012). And while it is true that the Oklahoma judiciary is not prevented from
interpreting its clause more broadly than the federal version, see Starkey, 305
P.3d at 1021, we are not aware of any Oklahoma authority construing the state’s
ex post facto clause in a more expansive fashion as relevant here—more
specifically, such that it would provide Mr. Maynard with relief where the federal
Constitution does not. Thus, insofar as Mr. Maynard’s complaint can be
construed as asserting a supplemental state-law claim, the reasoning set forth
below applies to it, and that claim, too, warrants dismissal.

4
claims. The district court adopted the findings articulated in the magistrate

judge’s screening recommendation (over Mr. Maynard’s objection), denied Mr.

Maynard’s motion to disqualify judges in the Western District of Oklahoma, and

dismissed the complaint without prejudice.

Mr. Maynard subsequently filed a motion to amend the complaint and a

second motion to disqualify the magistrate and district judges. After the district

court denied both motions, Mr. Maynard contemporaneously filed his notice of

appeal and sought a COA from the district court. Noting that no COA was

necessary to appeal from the dismissal of Mr. Maynard’s complaint, the district

court declined to issue a COA. Mr. Maynard renews his request for a COA in our

court.

II

A

The sufficiency of a complaint under 28 U.S.C. § 1915A is a legal question

reviewed de novo. See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). As

we must when reviewing any dismissal of a complaint, we “accept as true all

well-pleaded facts, as distinguished from conclusory allegations, and view those

facts in the light most favorable to the nonmoving party.” Moya v.

Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006) (internal quotation marks

omitted). Where applicable, “we will take the allegations in [the] plaintiff’s

objections to the magistrate’s report as true.” Dunn v. White, 880 F.2d 1188,

5
1190 (10th Cir. 1989) (per curiam); accord McBride v. Deer, 240 F.3d 1287, 1289

(10th Cir. 2001).

Any plaintiff must allege facts sufficient to make his claims facially

plausible; that is, to avoid dismissal he must plead “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, 678 (2009). We hold a pro

se plaintiff’s pleadings “to a less stringent standard than formal pleadings drafted

by lawyers,” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th

Cir. 2005) (internal quotation marks omitted), and if we “can reasonably read the

pleadings to state a valid claim on which the plaintiff could prevail, [we] do so,”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). By the same token, we

provide reasonable opportunities for pro se litigants to cure defects in their

pleadings. See Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990); see

also Heard v. Addison, 728 F.3d 1170, 1186 n.8 (10th Cir. 2013) (noting in the

habeas context that “we give pro se petitioners the benefit of the doubt”).

At the same time, “the court should not assume the role of advocate, and

should dismiss claims which are supported only by vague and conclusory

allegations.” Ledbetter v. City of Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003)

(internal quotation marks omitted); see also McBride, 240 F.3d at 1290 (noting

that “the [general] pleading hurdle is not automatically overcome” for pro se

litigants); Hall, 935 F.2d at 1110 (noting our obligation to “accept as true only the

6
plaintiff’s well-pleaded factual contentions” (emphasis added)). It is not our

office to supply additional facts or legal theories for a plaintiff’s benefit. See

Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009); Whitney v. New

Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997). And, “where it is obvious that

the plaintiff cannot prevail on the facts he has alleged and it would be futile to

give him an opportunity to amend,” we will uphold the dismissal of his complaint.

Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999).

A plaintiff bringing a § 1983 claim must “allege the violation of a right

secured by the Constitution and laws of the United States, and . . . that the alleged

deprivation was committed by a person acting under color of state law.” Bruner

v. Baker, 506 F.3d 1021, 1025–26 (10th Cir. 2007) (internal quotation marks

omitted). Where, as here, the plaintiff names numerous defendants, his complaint

must “make clear exactly who is alleged to have done what to whom, to provide

each individual with fair notice as to the basis of the claims.” Robbins v. Okla. ex

rel. Dep’t of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008). The plaintiff

must also allege a causal connection—i.e., that the defendants “set in motion a

series of events that caused the constitutional violation.” Schneider v. City of

Grand Junction Police Dep’t, 717 F.3d 760, 779 (10th Cir. 2013) (internal

quotation marks omitted).

7
 B

In his complaint, Mr. Maynard asserted the following three claims for relief

concerning § 332.7: (1) an Ex Post Facto Clause challenge; (2) a violation of the

ADA; and (3) a conspiracy claim. We address each in turn.

1

Mr. Maynard first claims that § 332.7 is an impermissible ex post facto law

on its face and as applied to his case. Under the Ex Post Facto Clause,

“[l]egislatures may not retroactively alter the definition of crimes or increase the

punishment for criminal acts.” Gilson v. Sirmons, 520 F.3d 1196, 1228 (10th Cir.

2008) (internal quotation marks omitted). The crux of our ex post facto inquiry is

“whether [the law] constitutes additional criminal punishment for the crimes

previously committed by those subject to its provisions,” Femedeer v. Haun, 227

F.3d 1244, 1248 (10th Cir. 2000), not “whether a legislative change produces

some ambiguous sort of disadvantage” to the defendant, Barnes v. Scott, 201 F.3d

1292, 1294 (10th Cir. 2000) (internal quotation marks omitted).

As is relevant here, Mr. Maynard contends that § 332.7 violates the Ex Post

Facto Clause because (1) he did not receive what he believed was an entitlement

to appear personally before the Board; and (2) the Board “discriminated against”

him by “refus[ing] to give him” a “personal appearance hearing.” 4 Aplt.

4
Mr. Maynard neglected to raise discrimination as a theory of relief
supporting his ex post facto challenge in the district court. He does not argue for
(continued...)

8
Combined Br. at 4 (capitalization altered). Our review of this claim leads us to

conclude that Mr. Maynard wishes to proceed as if the Forgotten Man Act

remains the governing law—but, to state the obvious, it does not. Reduced to its

essence, then, Mr. Maynard’s argument is the same for his facial and as-applied

challenges: he personally disagrees with § 332.7 and believes (with no legal

basis) that the statute runs afoul of the Constitution. But Mr. Maynard’s views do

not cast doubt on our own determination over ten years ago that § 332.7 does not

violate the Ex Post Facto Clause. See Henderson v. Scott, 260 F.3d 1213,

1216–17 (10th Cir. 2001).

In Henderson, we rejected a habeas petitioner’s facial and as-applied

attacks on the substance of § 332.7. Examining the statute on its face, we

concluded that § 332.7, “[w]hen viewed within the whole context of Oklahoma’s

parole regulations, . . . does not facially increase the likelihood of punishment.”

Id. at 1216. Our reasoning, detailed below, explains why Mr. Maynard cannot

successfully cast this statute as one facially implicating the Ex Post Facto Clause.

4
(...continued)
plain-error review of this argument on appeal, and we therefore do not address it.
See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th Cir. 2011)
(noting that a forfeited legal theory “may form a basis for reversal only if the
appellant can satisfy the elements of the plain error standard of review” and that
“failure to argue for plain error . . . surely marks the end of the road for an
argument for reversal not first presented to the district court” (emphasis
omitted)).

9
 First, [§ 332.7] does not change the length of the sentence in any
way. Second, it does not affect the timing of the initial parole
consideration, only of subsequent parole consideration dates.
Third, the amended statute provides that reconsideration cannot
occur within three years of the previous denial unless otherwise
directed by the Pardon and Parole Board[.] This language clearly
reserves the Board’s discretion to reconsider parole . . . .
Fourth, . . . the Board has the authority to defer reconsideration
for up to five years, but . . . it can modify parole consideration
dates if the Board receives new information.

Taken together, these factors indicate that under the Oklahoma
parole system, inmates are not subject to a longer punishment
because of the amended statute. The amendment only allows less
frequent parole reconsideration dates in situations where the
Parole Board determines that more frequent reconsideration is
unnecessary. This is insufficient to violate the ex post facto
prohibition.

Id. at 1216–17 (emphases added) (citations omitted) (internal quotation marks

omitted). Thus, we need not look beyond our own binding precedent to conclude

that Mr. Maynard has failed to state a cognizable facial challenge to the validity

of § 332.7.

We likewise reject Mr. Maynard’s as-applied challenge to the statute for

substantially the same reasons stated by the Henderson court. Like the prisoner

in Henderson, Mr. Maynard merely offers “remote speculation to suggest that the

application of the amended statute in [his] case will increase his punishment.” Id.

at 1217. That is, Mr. Maynard has not shown that § 332.7 poses a significant risk

that he will face a longer sentence or that the statute retroactively deprived him of

an actual right to appear personally before the Board. He concedes that he is not

10
arguing for parole and, as best we can tell, insists only that he is entitled to

“know what his short falls are.” Aplt. Combined Br. at 6.

In other words, Mr. Maynard does not address the length of his sentence

here, and he did not so in the district court (where instead he vaguely disputed the

State’s purported failure to keep him in a mental-health facility). Additionally, at

no time during the proceedings has he demonstrated any changed circumstances

showing his entitlement to parole or that a change to his reconsideration dates

would somehow become critically important. Indeed, as we stated in Henderson,

“any evidence [a prisoner] might produce that may indicate that he will be

eligible for a parole recommendation before his reconsideration date should first

be brought before the [Board].” 260 F.3d at 1217; see id. (citing Okla. Pardon &

Parole Bd., Policy & Procedures Manual, Policy 004, for the proposition that

“[t]he procedures are in place for the [Board], at its discretion, to consider [a

prisoner’s] parole at any time”).

Equally problematic for Mr. Maynard is that he has no constitutionally

protected right to an annual parole hearing. As our case law makes clear,

“[p]arole [itself] is a privilege; there is no constitutional or inherent right to

parole.” Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992); see Dock v.

Latimer, 729 F.2d 1287, 1290 (10th Cir. 1984) (noting that although a state may

choose to implement a parole system, “it has no duty to do so”). We have also

emphasized that “there simply is no constitutional guarantee that all executive

11
decisionmaking must comply with standards that assure error-free determinations.

This is especially true with respect to the . . . administrative decision to grant

parole release.” Dock, 729 F.2d at 1290 (citations omitted).

Our approach is bolstered by California Department of Corrections v.

Morales, 514 U.S. 499 (1995)—a case Mr. Maynard mistakenly finds beneficial

to his viewpoint—where, as here, a statutory amendment permitted a parole board

to defer hearings for up to three years. The Supreme Court determined that the

amended statute did not violate the Ex Post Facto Clause, noting that it altered the

method “[r]ather than changing the sentencing range applicable to covered

crimes.” Morales, 514 U.S. at 507–08 (emphasis added). “Respondent

nonetheless urges us to hold that the Ex Post Facto Clause forbids any legislative

change that has any conceivable risk of affecting a prisoner’s punishment,” the

Court observed, “[but] [o]ur cases have never accepted this expansive view of the

Ex Post Facto Clause, and we will not endorse it here.” Id. at 508. We reach the

same conclusion in Mr. Maynard’s case.

Because we agree with the district court’s conclusion that Mr. Maynard

failed to state a constitutional violation under the Ex Post Facto Clause, we affirm

the dismissal of that portion of Mr. Maynard’s complaint.

2

Mr. Maynard has also brought a claim for relief grounded in Title II of the

ADA. To withstand dismissal on such a claim, “the plaintiff must allege that ‘(1)

12
[he] is a qualified individual with a disability, (2) who was excluded from

participation in or denied the benefits of a public entity’s services, programs, or

activities, and (3) such exclusion, denial of benefits, or discrimination was by

reason of a disability.’” Cohon ex rel. Bass v. N.M. Dep’t of Health, 646 F.3d

717, 725 (10th Cir. 2011) (quoting Robertson v. Las Animas Cnty. Sheriff’s Dep’t,

500 F.3d 1185, 1193 (10th Cir. 2007)). Mr. Maynard at least arguably satisfies

the first requirement through his assertion of mental illness. His success on the

second requirement is less clear—i.e., a parole hearing, though certainly a

“benefit,” is not one to which he is entitled at a time of his choosing. Regardless,

Mr. Maynard fails this test because he cannot link his disability to the denial of

this ostensible benefit; he has not alleged that he was denied a personal

appearance before the Board because of his mental-health issues.

On appeal, Mr. Maynard advances only two arguments that we could

conceivably construe as implicating the “by-reason-of-a-disability” requirement

of an ADA claim. He first contends that Defendants overlooked his mental

illness when assigning him to a specific prison yard. Second, he argues that with

a personal appearance before the Board “he could have shown that he should not

have been released” from a mental-health facility at some point predating the

crime for which he is now incarcerated. Aplt. Combined Br. at 9. The import (or

even relevance) of these arguments is far from pellucid. However, as best we can

tell, neither comes close to satisfying Mr. Maynard’s burden to show that he did

13
not receive the relief he seeks (i.e., a parole hearing) because of a qualifying

disability. In sum, we conclude that the district court did not err in dismissing

Mr. Maynard’s ADA claim.

3

Mr. Maynard’s third claim for relief is that Defendants’ enforcement of

§ 332.7 constitutes a conspiracy to violate his constitutional rights. His failure to

argue this claim on appeal suggests that he has abandoned this argument. Though

we need not address affirmatively abandoned theories, see Taylor v. Roswell

Indep. Sch. Dist., 713 F.3d 25, 33 n.5 (10th Cir. 2013), it is clear that Mr.

Maynard’s prior conspiracy averments lack traction. In order to state an

actionable § 1983 conspiracy claim, a plaintiff “must prove both the existence of

a conspiracy and the deprivation of a constitutional right.” Thompson v. City of

Lawrence, 58 F.3d 1511, 1517 (10th Cir. 1995). Our agreement with the district

court’s finding of no constitutional violation leads ineluctably to the conclusion

that Mr. Maynard’s § 1983 conspiracy claim is not viable. The district court

correctly dismissed this claim, and we affirm its decision.

4

We have concluded that the district court properly dismissed Mr.

Maynard’s civil-rights complaint under § 1915A. However, we do not believe the

appropriate disposition of the matter was a dismissal without prejudice. See R. at

88 (Report & Recommendation, filed Sept. 24, 2013) (“recommend[ing] that

14
Plaintiff’s complaint be dismissed without prejudice on screening”); id. at 136

(Order, filed Oct. 10, 2013) (“dismiss[ing] Maynard’s complaint without

prejudice” (capitalization altered)). All of the claims asserted in Mr. Maynard’s

complaint have been adjudicated on the merits. Moreover, Mr. Maynard was

denied leave to amend when he sought to demonstrate why he purportedly had a

protected liberty interest in personally appearing before the Board. The district

court expressly stated its view that “under extant case law . . . the proposed

amendment would be futile.” Id. at 150 (Order Den. Mot. to Amend, filed Oct.

16, 2013).

Consequently, though we affirm the district court’s dismissal of Mr.

Maynard’s complaint, we find no basis for its entry of a without-prejudice

dismissal. We therefore remand to the district court for the limited purpose of

amending the judgment to reflect a with-prejudice dismissal.

C

Finally, we note that Mr. Maynard’s request for a COA is not properly

before us. A COA is necessary when a litigant wishes to appeal from (as relevant

here) “the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court.” 28 U.S.C.

§ 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (“Before

an appeal may be entertained, a prisoner who was denied habeas relief in the

district court must first seek and obtain a COA.” (emphasis added)). Because Mr.

15
Maynard’s case is not a habeas proceeding, it is not subject to the same COA

constraints. In other words, no COA is necessary for the determination of this

appeal.

III

We AFFIRM the district court’s order dismissing Mr. Maynard’s

complaint and REMAND the case only for the district court to enter a Rule 58

judgment dismissing the suit with prejudice. We DISMISS Mr. Maynard’s

application for a COA.

Entered for the Court

JEROME A. HOLMES
Circuit Judge

16