United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2007
Charles R. Fulbruge III
Clerk
No. 04-41455
Summary Calendar
RICHARD DELANEY KYLES,
Plaintiff-Appellant,
versus
GERALD GARRETT; TROY FOX,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(3:03-CV-53)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Richard Delaney Kyles, Texas prisoner #
257935, proceeding pro se, appeals the district court’s dismissal
of his 42 U.S.C. § 1983 suit challenging Texas’s new parole
procedures. The court found that Kyles’s action was frivolous and
failed to state a claim on which relief could be granted. We
review a dismissal as frivolous for an abuse of discretion. See
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). We review a
dismissal for failure to state a claim de novo. See Harris v.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Hegmann, 198 F.3d 153, 156 (5th Cir. 1999) (§ 1915(e)(2)(B)); Ruiz
v. United States, 160 F.3d 273, 275 (5th Cir. 1998)(§ 1915A).
Kyles’s first contention is that the new Texas parole
procedure violates the Ex Post Facto Clause by retroactively
changing the manner in which parole is granted, thereby subjecting
him to a risk of a longer term of imprisonment. Under the
procedure in place at the time of Kyles’s conviction, Texas law
required only two of three votes of a regional panel for parole.
The amended version of the parole procedure requires a majority
vote of the entire 18-member board. Kyles does not seek to
invalidate prior parole proceedings or to obtain immediate release;
rather, he seeks only to have the former parole scheme apply to his
future parole hearings. Thus, his action is properly brought
pursuant to 42 U.S.C. § 1983. See Allison v. Kyle, 66 F.3d 71, 73
(5th Cir. 1995).
As Kyle correctly asserts, a retroactive change in the law
governing parole might violate the Ex Post Facto Clause. See
Garner v. Jones, 529 U.S. 244, 250 (2000). The inquiry is whether
the change in law creates “a sufficient risk of increasing the
measure of punishment attached to the covered crimes.”
Id. (internal quotation marks and citation omitted). A new
procedure that creates only a speculative and attenuated risk of
increasing the measure of punishment, however, does not violate the
Ex Post Facto Clause. See California Dep’t of Corrections v.
Morales, 514 U.S. 499, 513 (1995).
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Kyles has alleged that two of the three members of the
regional panel that would have considered his parole application
under the former procedure have twice voted for his release. This
allegation is supported by minutes of the parole board. Thus, the
risk of increased punishment in his case is not entirely
speculative or attenuated. Therefore, we cannot say that Kyles’s
complaint lacks any arguable basis in fact or law such that it is
frivolous, see Martin, 156 F.3d at 580, or that, taking Kyles’s
allegations as true, it appears that no relief is available. See
Harris, 198 F.3d at 156. We express no opinion on the merits of
the case, but we conclude that, at this stage of the proceedings,
the district court erred in dismissing Kyles’s complaint with
respect to his ex post facto challenge as frivolous and for failure
to state a claim.
In contrast, we find no error in the district court’s
dismissal of Kyles’s equal protection claim. He correctly asserts
that the Equal Protection Clause may give rise to a cause of action
on behalf of a “class of one,” if the plaintiff shows that he has
been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). Beyond conclusional allegations that others similarly
situated have been granted parole, though, Kyles offers no specific
factual support for his assertions. See Brinkmann v. Johnston, 793
F.2d 111, 113 (5th Cir. 1986) (plaintiff in § 1983 action must
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state specific facts, not merely conclusory allegations, to support
his claim).
Although Kyles claims that he requires discovery to obtain
information to support his claim, his argument fails. Even if
there were others who were treated differently, Kyles has not
alleged any facts to indicate that such different treatment had no
rational basis or was motivated by any ill will or illegitimate
animus. See Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir. 2000),
overruled on other grounds, McClendon v. City of Columbia, 305 F.3d
314, 328-29 (5th Cir. 2002) (en banc). Kyles was granted one
opportunity to amend his complaint, and he has failed to show how
a Spears hearing or further amendment of his complaint would enable
him to further develop his claim. See Beck v. Lynaugh, 842 F.2d
759, 761 (5th Cir. 1988) (a district court is not required to hold
a Spears hearing in every case). The district court did not err in
denying Kyles leave to amend before ordering this claim dismissed.
See Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999).
For the foregoing reasons, the judgment of the district court
dismissing Kyles’s claims based on the Ex Post Facto Clause is
VACATED, and this claim is REMANDED for further proceedings
consistent with this opinion. In all other respects, however,
including dismissal of Kyles’s equal protection claim, the judgment
of the district court is AFFIRMED.
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