[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 21, 2007
No. 06-13003 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-61243-CV-KAM
WILLIAM HENRY ROBINSON,
Plaintiff-Appellant,
versus
MICHAEL J. SATZ,
State Attorney,
GERARD WILLIAMS, Assistant
State Attorney,
JIMMIE L. HENDRY, Chairman
of Parole Commission,
M. DAVID, Assistant Chairman
of Parole Commission,
F. B. DUMPHY, Assistant
Chairman of Parole Commission,
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 21, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
William Robinson, a Florida state prisoner proceeding pro se, appeals the
district court’s dismissal of his complaint, filed pursuant to 42 U.S.C. § 1983,
alleging that the defendants, including Florida state attorney Michael Satz and
several parole commission and Florida Department of Corrections employees,
violated his due process rights by: (1) identifying him on the state of Florida’s
public website as a sex offender without a prior hearing to determine whether the
information was true; and (2) denying him parole based on inaccurate information
that he had committed rape, despite never having been charged or convicted of that
offense. Robinson sought to have the rape information expunged from his prison
record so that it would not continue to be used to prevent him from earning gain-
time credits, parole, or work release. He also requested millions of dollars in
damages.
Robinson’s complaint alleges that on November 30, 1972, he “came upon” a
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crime in progress, in which a woman was being raped and a dead man was on the
ground. Robinson was charged with the murder of the woman, and his defense to
the crime was that someone else had both raped and murdered her. He sought to
have his bodily fluids tested against those that were found on the victim, but the
state attorney told him that the autopsy showed that no rape had occurred.
Robinson was convicted of the murder in 1973, but the conviction was reversed in
1988, at which time he was re-indicted for the murder, pleaded guilty, and was
sentenced to life imprisonment, with credit for time served. Robinson alleges that
he was given a parole date of September 9, 1998, and was approved for work
release, but then defendant Satz, “or through his assistant state attorney general
Gerard Williams,” prepared a report including false information that Robinson had
been convicted of rape to influence the parole commission not to grant him either
parole or work release.
After he was denied parole, Robinson, proceeding pro se and in forma
pauperis, filed suit against Satz, Williams, and several parole commission and
Department of Corrections employees. On May 3, 2006, acting pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii), the district court sua sponte dismissed his complaint for
failure to state a claim. Robinson timely appealed, arguing that the false and
misleading report regarding the alleged rape, which according to Robinson was
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intentionally created by Williams, was being used to: (1) void the work release
that he was granted in 1998; (2) void the gain-time credits he had earned for good
work performance throughout his incarceration; and (3) deny him parole.1
Robinson also contends that he was erroneously identified as a sex offender on
Florida’s public website.
We “review de novo a district court’s sua sponte dismissal for failure to state
a claim, pursuant to § 1915(e)(2), using the same standards that govern Federal
Rule of Civil Procedure 12(b)(6) dismissals.” Farese v. Scherer, 342 F.3d 1223,
1230 (11th Cir. 2003). In reviewing a complaint under Fed. R. Civ. P. 12(b)(6),
we must accept all facts alleged in the complaint as true and construe them in the
light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
2003). Moreover, “[p]ro 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).
Robinson first argues that the defendants revoked some of his privileges,
1
Robinson also devotes a large portion of his brief to challenging his 1988 indictment
and conviction for murder, but we will not consider that issue because Robinson failed to argue
it before the district court. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004) (holding that an issue raised for the first time on appeal will not be
considered by this Court). Moreover, this argument constitutes a challenge to the validity of
Robinson’s state conviction, and the proper avenue for this type of relief is through a petition for
writ of habeas corpus, not a § 1983 claim. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct.
1827, 1841 (1973).
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such as gain-time credits for good performance and eligibility for work release,
based on false information that he had been charged with and convicted of rape.
The Supreme Court has held that a prisoner may not use § 1983 to challenge the
fact or duration of his confinement. See Preiser, 411 U.S. at 500, 93 S. Ct. at 1841.
In Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584 (1997), a prisoner brought a
§ 1983 claim, alleging that his due process rights were violated because a hearing
officer intentionally concealed exculpatory witness statements at his disciplinary
hearing, which resulted in the loss of his good-time credits. Id. at 644, 117 S. Ct.
at 1587. The Supreme Court concluded that his claim for damages and declaratory
relief “necessarily impl[ied] the invalidity of the punishment imposed” because if
the Court concluded that the procedures used by the hearing officer violated the
prisoner’s due process rights, he would be entitled to reinstatement of his good-
time credits. Id. at 646–48, 117 S. Ct. at 1588–89. Accordingly, the Court held
that the plaintiff’s claim was “not cognizable under § 1983.” Id. at 648, 117 S. Ct.
at 1589.
Later, in Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242 (2005), the
Supreme Court reviewed its prior holdings in this area and summarized that “a
state prisoner’s § 1983 action is barred (absent previous invalidation [of his
conviction or sentence])—no matter the relief sought (damages or equitable relief),
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no matter the target of the prisoner’s suit (state conduct leading to conviction or
internal prison proceedings)—if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.” Id. at 81–82, 125 S. Ct.
at 1248.
Robinson’s complaint does not allege that either his 1988 murder
conviction or his life sentence has been invalidated. Robinson’s argument
regarding work release and gain-time credits, however, “necessarily impl[ies] the
invalidity of the punishment imposed” because, as in Edwards, a conclusion that
Robinson’s due process rights were violated by the parole commission’s
procedures would mean that he is entitled to a reinstatement of his gain-time
credits and work release eligibility status. See Edwards, 520 U.S. at 646–48, 117
S. Ct. at 1588–89. Therefore, this claim is not actionable under § 1983. See id. at
648, 117 S. Ct. at 1589.
Robinson next argues that his due process rights were infringed when he was
denied parole based on the parole commission’s mistaken belief that he had been
charged with and convicted of rape. “The Due Process Clause applies when
government action deprives a person of liberty or property.” Greenholtz v. Inmates
of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103 (1979). In the
context of parole, the Supreme Court has held that a convicted prisoner has no
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constitutional right to be released before the expiration of a valid sentence. Id. at 7,
99 S. Ct. at 2104. Accordingly, a parole commission’s decision about whether to
grant an inmate parole does not automatically invoke due process protection. Id.
A state may create a protectible liberty interest in the establishment of a parole
system, see id. at 12, 99 S. Ct. at 2106, but we have held that Florida’s parole
statutes did not create such a protected liberty interest. Hunter v. Fla. Parole &
Prob. Comm’n, 674 F.2d 847, 848 (11th Cir. 1982).
Even when a prisoner does not have a liberty interest in parole, however, the
discretion of the parole board is not unlimited. Monroe v. Thigpen, 932 F.2d 1437,
1442 (11th Cir. 1991). For example, a parole board cannot rely upon admittedly
false information in determining whether to grant parole, and by doing so, the
board treats the prisoner “arbitrarily and capriciously in violation of due process.”
Id. However, we have held that a prisoner does not state a due process claim
simply by making a “conclusory allegation” regarding the use of false information
by a parole board. Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001).
Because Florida’s parole statutes are discretionary, Robinson has no
constitutional right to parole, and due process does not apply to the state’s
procedures for deciding whether to grant him parole. See Hunter, 674 F.2d at 848.
Moreover, although Robinson alleges that Williams intentionally included false
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information in the report, he submitted a copy of the report in support of his claim,
and it states that Robinson was never charged with rape. Robinson has provided
no other information besides his conclusory allegation suggesting that the parole
commission relied on false information in denying him parole, and therefore, the
district court correctly dismissed his claim on this issue. See Jones, 279 F.3d at
946; see also Monroe, 932 F.2d at 1442 (“[P]risoners do not state a due process
claim by merely asserting that erroneous information may have been used during
their parole consideration.”).
Robinson finally argues that his right to due process was violated because he
was placed on the Florida sex offender website without notice even though he was
never charged with or convicted of any sex offense. The Florida Sex Offender Act
defines a sex offender as a person who “has been [c]onvicted of committing,
attempting, soliciting, or conspiring to commit” any of the enumerated offenses,
including rape. Fla. Stat. § 943.0435(1)(a)(1). Pursuant to this statute, Florida has
established a public website, in which each sex offender’s name, address,
photograph, and offense is listed. See http://offender.fdle.state.fl.us. We have held
that “the stigmatizing effect of being classified as a sex offender constitutes a
deprivation of liberty under the Due Process Clause.” Kirby v. Siegelman, 195
F.3d 1285, 1292 (11th Cir. 1999). Therefore, “[a]n inmate who has never been
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convicted of a sex crime is entitled to due process before the state declares him to
be a sex offender.” Id.
Robinson’s complaint alleges that he has never been convicted of a sex
crime, and therefore, he should not be identified as a sex offender and posted on
the website. Liberally construed, his complaint also alleges that he received no
notice that he was going to be identified as a sex offender before he was placed on
the website. Based on our holding in Kirby, Robinson was entitled to due process
before he was declared a sex offender and identified on the state of Florida’s sex
offender website. See Kirby, 195 F.3d at 1292. Robinson has therefore stated a
valid due process claim, and the district court erred in dismissing his complaint for
failure to state a claim on this issue.2
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
2
We note that upon review of the Florida sex offender website, we did not see
Robinson’s name on it. If Robinson has never been identified on the sex offender website, then
his claim has no merit and summary judgment would be proper. That fact, if it is a fact, cannot
be ascertained from the record as it now stands.
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