[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 6, 2006
No. 06-12689 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00336-CV-TWT-1
CHESTER T. AKINS,
Plaintiff-Appellant,
versus
SONNY PERDUE,
Defendant,
MILTON E. (BUDDY) NIX, JR., individually,
DR. BETTY ANN COOK, individually,
DR. EUGENE P. WALKER, individually,
GARDFIELD HAMMONDS, JR., individually,
J. MICHAEL LIGHT, individually,
GARLAND R. HUNT, ESQ., individually, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 6, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Chester T. Akins, a Georgia prisoner, appeals pro se the denial of his
request for contempt sanctions and the dismissal of his complaint of retaliation
and equal protection violations relating to denials of parole. We affirm.
I. BACKGROUND
When Akins committed his crimes in 1972, the rules of the Georgia State
Board of Pardons and Paroles required the Board to reconsider annually a
prisoner’s request for parole. Akins was first denied parole in 1980, and he was
reconsidered for parole annually through 1986. In 1986, the Board amended its
rules to require reconsideration of denials of parole every eight years and
scheduled Akins’s next parole reconsideration hearing for 1994.
Akins then sued Board chairman Wayne Snow. Akins alleged that the rule
change violated his federal civil rights, and on appeal this Court concluded that
“the elimination of an annual parole reconsideration hearing can as a matter of law
violate the ex post facto clause.” Akins v. Snow, 922 F.2d 1558, 1565 (11th Cir.
1991).
In 2000, Akins filed a complaint against the Governor of Georgia and the
Board members to enforce his entitlement to an annual consideration for parole.
2
In 2001, the Board consented to the following permanent injunction for Akins to
be reconsidered for parole annually:
[T]he Georgia Board of Pardons and Paroles is hereby permanently
enjoined to reconsider the Plaintiff immediately for parole and to
apply the reconsideration rule in effect at the time of Plaintiff’s
offense (at least annually) to all future parole reconsiderations until
Plaintiff has served his sentence or been paroled.
On February 4, 2005, Akins filed a complaint that the Board members had
violated the 2001 injunction when (1) Akins was denied parole July 14, 2003,
without a hearing or interview; (2) Akins was denied parole March 24, 2004, after
an interview with a Board employee but not a hearing or interview with Board
members; and (3) Akins was denied parole June 2, 2005, without a hearing or
interview. Akins alleged a conspiracy, retaliation for his successful litigation, and
the denial of his right to due process and equal protection. Akins requested
contempt sanctions, declaratory and injunctive relief, and both compensatory and
punitive damages.
The district court, under 28 U.S.C. § 1915A(b)(1), concluded that Akins’s
allegations of retaliation, conspiracy, and denials of equal protection failed to state
claims upon which relief may be granted. The district court concluded that Akins
failed to allege a factual connection between his litigation and the denials of
parole or facts from which a retaliatory motive could be inferred, and Akins failed
3
to allege that he is a member of a protected class who was treated differently on
that account. The district court also concluded that Governor Perdue lacked
authority to grant or deny parole and dismissed all the claims against him. The
court concluded that Akins’s interview with a Board employee in 2004 satisfied
the hearing requirement, but declined to dismiss the claims relating to the 2003
and 2005 denials of parole.
The Board members answered and argued that they had not violated the
2001 injunction because that injunction did not require the Board to provide face-
to-face interviews. Akins sought discovery, which the district court denied. Akins
filed a motion for contempt and sanctions, which the court construed as a motion
for summary judgment. The Board members filed a cross-motion for summary
judgment. The district court granted summary judgment in favor of the Board.
II. STANDARDS OF REVIEW
We review de novo a grant of summary judgment and view the evidence in
the light most favorable to the nonmoving party. Brooks v. County Comm’n of
Jefferson County, 446 F.3d 1160, 1161-62 (11th Cir. 2006). We review for abuse
of discretion the denial of discovery. Arthur v. Allen, 452 F.3d 1234, 1243 (11th
Cir. 2006). We review de novo the sua sponte dismissal of an in forma pauperis
complaint for failure to state a claim, 28 U.S.C. § 1915A(b)(1), and view the
4
allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th
Cir. 2006).
III. DISCUSSION
Akins’s brief, which we construe liberally, see Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998), makes four arguments: (1) our
decision in Akins v. Snow mandates an annual parole consideration hearing; (2)
the denial of discovery was an abuse of discretion; (3) the repeal of Board Rule
475-3-.11 violated Akins’s procedural due process and ex post facto rights; and
(4) the conspiracy, retaliation, and equal protection claims should not have been
dismissed. We discuss each in turn.
A. The Board Was Not in Contempt Because the 2001 Injunction
Does Not Require an Annual Hearing.
Akins’s argument that the requirement of annual reconsideration includes
the requirement of an annual in-person hearing fails. Akins argues that, in Akins
v. Snow, we described the reconsideration rule as requiring an annual hearing and
concluded that “a parole reconsideration hearing is an essential part of parole
eligibility under Georgia’s parole system.” 922 F.2d at 1560, 1562, 1564. The
problem for Akins is that our earlier decision was not the last word on this subject.
Akins’s rights are governed by the 2001 injunction, which requires annual
5
reconsideration, but says nothing about an annual hearing. The reconsideration
rule in effect when Akins committed his crimes, which the Board agreed to
continue in the 2001 injunction, also did not mention a hearing. That rule stated,
“Reconsideration of those who have been denied parole shall take place at least
annually.” Board R. 475-3-.05(2) (1972). Akins does not allege that the Board
failed to reconsider him for parole in any year after the entry of the 2001
injunction. Because Akins raised no genuine issue of material fact relating to the
Board’s compliance with the 2001 injunction, the district court did not err in
denying Akins’s request for contempt sanctions.
B. The Denial of Discovery by the District Court Was Not an Abuse of Discretion.
Akins argues that the Board had a longstanding practice of using in-person
interviews as part of its parole reconsideration process, and the district court
abused its discretion when it denied Akins discovery to ascertain whether there
was such a rule in effect at the time of his crimes. This argument fails. In its order
denying discovery, the district court explained that Akins “ha[d] not shown that he
is unable to obtain the documents requested by serving a Request for Production
of Documents upon counsel for the Defendants or by an Open Records Act
request.” Because Akins does not argue that he was later unable to obtain the
documents, or that he even attempted to obtain them, the district court did not
6
abuse its discretion. See Carmical v. Bell Helicopter Textron, Inc., 117 F.3d 490,
493 (11th Cir. 1997).
C. The Repeal of Rule 475-3-.11 Did Not Violate Akins’s Ex Post Facto
or Due Process Rights.
Akins raises an argument not addressed by the district court: the repeal of
Board Rule 475-3-.11, which was in effect from 1985 to 1991 and entitled certain
prisoners to an interview with a Board member, violated his ex post facto and
procedural due process rights. This argument fails. The Ex Post Facto Clause
prohibits “enactments which, by retroactive operation, increase the punishment for
a crime after its commission.” Garner v. Jones, 529 U.S. 244, 249, 120 S. Ct.
1362, 1367 (2000). Even if Rule 475-3-.11 could have shortened a prisoner’s
sentence, its repeal would not have increased the punishment for Akins’s crimes
after their commission, because the rule was not in effect when Akins committed
his crimes.
Akins’s due process argument also fails. Akins asserts that Rule 475-3-.11
was repealed in violation of the Georgia Administrative Procedure Act, Ga. Code.
§ 50-13-4. We need not address whether this argument is relevant to any
cognizable theory of due process, because the Board presented an uncontroverted
affidavit and exhibit in the district court that established its compliance with the
7
APA. Because Akins failed to present any evidence to create a genuine issue of
material fact, summary judgment was proper. See Gossett v. Du-Ra-Kel Corp.,
569 F.2d 869, 872 (5th Cir. 1978); Fed. R. Civ. P. 56(e).
D. The Conspiracy, Retaliation, and Equal Protection Claims Were
Properly Dismissed for Failure to State a Claim.
Akins’s remaining arguments pertain to the dismissal of his allegations of a
denial of equal protection, retaliation, and conspiracy. As to each, the district
court ruled that Akins failed to state a claim for relief. We agree with the district
court.
1. Equal Protection
Akins argues that his equal protection claim was improperly dismissed, but
this argument fails. “To establish an equal protection claim, a prisoner 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.” Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir.
2001) (internal quotation marks omitted). Akins’s complaint did not allege that he
had been treated worse than similarly situated prisoners on account of a
constitutionally protected interest. His conclusory assertion that his failure to
receive parole can only be on account of his litigation activities is insufficient to
8
support an equal protection claim.
2. Retaliation
Akins argues that his retaliation claim, which is that Rule 475-3-.11 was
repealed and he was denied parole in retaliation for his successful litigation, was
improperly dismissed. This argument also fails. To state a retaliation claim, a
prisoner must establish that (1) his speech or act was constitutionally protected;
(2) the defendant’s retaliatory conduct would likely deter a person of ordinary
firmness from engaging in protected speech; and (3) there is a causal connection
between the retaliatory actions and the adverse effect on speech. Bennett v.
Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005). The district court correctly
concluded that Akins failed to allege any facts from which a causal connection
between his denials of parole and his successful litigation could reasonably be
inferred. Akins’s complaint failed to allege a suspect chronology, and the exhibits
filed by Akins described the basis for most of his parole denials as the severe
nature of his offenses. Akins also did not raise his argument about the retaliatory
repeal of Rule 475-3-.11 in the district court, so we will not consider it. See
Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994). The district court did not
err.
9
3. Conspiracy
Akins argues that his conspiracy claim was improperly dismissed. To
establish a conspiracy claim under section 1983, Akins must first establish an
underlying denial of his constitutional rights. GJR Investments, Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1370 (11th Cir. 1998). Because he has not done
so, his conspiracy claim fails.
IV. CONCLUSION
The denial of Akins’s request for contempt sanctions and the dismissal of
his complaint of conspiracy, retaliation, and equal protection violations are
AFFIRMED.
10