Bankhead v. Georgia State Board of Pardons & Paroles

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________________________U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 19, 2006
No. 05-15127
_____________________________ THOMAS K. KAHN
CLERK

D. C. Docket No. 05-02017-CV-TWT-1

DONALD C. BANKHEAD,
Plaintiff-Appellant,

versus

GEORGIA STATE BOARD OF
PARDONS AND PAROLES
MILTON E. NIX, JR., et al.,
Defendants-Appellees.

_________________________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________

(July 19, 2006)

Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:

Plaintiff-Appellant Donald Bankhead, an inmate in the Georgia prison

system, appeals pro se the district court’s sua sponte dismissal of his 42 U.S.C. §

1983 case for failure to state a claim upon which relief can be granted, 28 U.S.C. §

1915A. Reversible error exists on the dismissal of Bankhead’s ex post facto

claim; we vacate and remand the district court’s dismissal order on this claim only

and affirm on his remaining claims.

According to his complaint, Bankhead began serving 20-year concurrent

sentences in November 1991, for voluntary manslaughter, aggravated assault,

kidnaping, and burglary. On 9 December 1997, the Georgia State Board of

Pardons and Paroles (the “Board”) adopted a 90 percent-to-serve policy (the “90

percent policy”), which applied to all inmates convicted after 1 January 1998.

Under this policy, inmates convicted of certain offenses were required to serve 90

percent of their sentences before becoming eligible for an initial parole hearing.

On 30 May 2002, the United States District Court for the Northern District of

Georgia determined that retroactive application of the 90 percent policy to inmates

whose offense conduct occurred before adoption of the policy was an ex post facto

violation. See Jackson v. State Board of Pardons and Paroles, No. 2:01-CV-068-

WCO; 2002 WL 1609804 (N.D. Ga. 2002).

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 On 25 July 2002, the Board informed Bankhead that his tentative parole

month (“TPM”) was March 2005. In July 2003, he was notified that his TPM had

been changed to November 2009, which was 90 percent of his 20-year sentence.

In March 2005, a Fulton County Superior Court judge declared that the 90 percent

policy was implemented improperly and, therefore, had no force or effect. The

Board issued a press release stating that it would not appeal this decision and that

it would apply the decision to all cases previously considered under the 90 percent

policy.

In his § 1983 complaint, Bankhead alleged that the Board’s acts in setting

his TPM violated constitutional protections under the ex post facto and due

process clauses. The district court concluded that Bankhead failed to state a claim

for a due process violation and that his ex post facto claim was moot, in light of

the Board’s 2005 statement that it would reconsider cases affected by the 90

percent policy.

We review de novo a district court’s sua sponte dismissal of a suit for

failure to state a claim for relief. Harden v. Pataki, 320 F.3d 1289, 1292 (11th Cir.

2003). A district court should not dismiss a complaint for failure to state a claim

“unless it appears beyond doubt that the prisoner can prove no set of facts in

support of his claim which would entitle him to relief.” Harmon v. Berry, 728

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F.2d 1407, 1409 (11th Cir. 1984). All allegations in the complaint must be viewed

as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).

We see no error in the district court’s conclusion that Bankhead failed to

state a due process claim. See Sultenfuss v. Snow, 35 F.3d 1494, 1501-02 (11th

Cir. 1994) (en banc) (explaining that Georgia’s parole system does not create a

protected liberty interest in parole). Therefore, the district court properly

dismissed this claim.

But because Bankhead’s case was dismissed before defendants filed an

answer, it is not clear to us whether the 90 percent policy ever applied to

Bankhead’s sentence. Therefore, we cannot say it is beyond doubt that Bankhead

can prove no facts in support of his ex post facto claim. Consequently, the district

court erred by dismissing this claim for failure to state a claim. We vacate and

remand Bankhead’s ex post facto claim and affirm on his remaining claims.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

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