Jeffrey Walker v. FL Parole Commission

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-13524 ELEVENTH CIRCUIT
Non-Argument Calendar November 6, 2008
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-00180-CV-4-RH-WCS

JEFFREY WALKER,

Plaintiff-Appellant,

versus

FLORIDA PAROLE COMMISSION,
MONICA DAVID,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 6, 2008)

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
Jeffrey Walker appeals the district court’s 28 U.S.C. § 1915(e)(2)(B)(ii)

dismissal of his 42 U.S.C. § 1983 civil rights complaint for failure to state a claim

and failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e.

On appeal, Walker argues that the district court erred when it dismissed his

complaint for failure to state a claim, because he did not claim a constitutional

right to parole, but rather claimed due process violations by Monica David,

Commissioner of the Florida Parole Board (herein referred to as the

“Commission”) for not “following [the Parole Board’s] rules,” which once

implemented created a state liberty interest that could not be arbitrarily denied.1

Lastly, Walker contests the imposition of the filing fee provisions of 28 U.S.C.

§ 1915(b), asserting that while these provisions apply to civil actions, they do not

apply to post-conviction proceedings concerning criminal sentences, such as parole

hearings. Consequently, he argues, its provisions do not apply to his complaint

concerning the denial of due process in the calculation of his PPRD. We affirm.

A district court’s sua sponte dismissal for failure to state a claim pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii) is reviewed de novo, using the same standards that

1
Walker also argues that the district court erred in dismissing his complaint for failure to
exhaust his administrative remedies, because he sought discretionary review of his Presumptive
Parole Release Date (PPRD) calculations by the Commission. He also argues that because
review is not mandatory, his remedies should be deemed exhausted. However, because we have
determined that he failed to state a claim, we will not address this alternative holding of the
district court.

2
govern Fed.R.Civ.P. 12(b)(6) dismissals. Mitchell v. Farcass, 112 F.3d 1483,

1489-90 (11th Cir. 1997). Under that standard we “view the allegations in the

complaint as true.” Id. at 1490. The Supreme Court has recognized that pro se

complaints are held to “less stringent standards” than pleadings drafted by

attorneys. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594 (1972).

A civil rights action, brought pursuant to § 1983, must allege that (1) the

complainant was deprived of a federal right (protected by either the Constitution or

federal statute) by (2) a person acting under color of state law. Griffin v. City of

Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). As a general rule, in order to

sustain a procedural due process violation, one must have a liberty interest created

by the United States Constitution or by a state. Monroe v. Thigpen, 932 F.2d

1437, 1441 (11th Cir. 1991). Interests protected by the Due Process Clause may be

created by prison regulations, see Wolff v. McDonnell, 418 U.S. 539, 556-58, 94

S.Ct. 2963, 2975 (1974), and state statutes and regulation, Vitek v. Jones, 445 U.S.

480, 488, 100 S.Ct. 1254, 1261 (1980). The Constitution does not confer a liberty

interest in parole, Monroe, 932 F.2d at 1441, and the Florida statutes do not create

a liberty interest in parole, because the decision whether to release an inmate on

parole is a matter committed to the discretion of the Commission without the

mandate of statute, Staton v. Wainwright, 665 F.2d 686, 688 (5th Cir. Unit B

3
1982). There is no liberty interest in the calculation of Florida’s “presumptive

parole release date” even though it is binding on the Commission, because the

ultimate parole decision is a matter of Commission discretion. Damiano v. Florida

Parole and Probation Comm’n, 785 F.2d 929, 932 (11th Cir. 1986). See also

Hunter v. Florida Parole & Probation Comm’n, 674 F.2d 847 (11th Cir. 1982)

(holding no due process violation could be shown through an allegation that the

Florida Parole and Probation Commission improperly calculated a prisoner’s

“presumptive parole release date”).

Where there is no liberty interest in parole, “the procedures followed in

making the parole determinations are not required to comport with the standards of

fundamental fairness.” O’Kelley v. Snow, 53 F.3d 319, 321 (11th Cir. 1995).

However, a limited exception to this rule exists when there is “flagrant or

unauthorized action” by the Board. Monroe, 932 F.2d at 1441. In Monroe, we

held that a parole board’s discretion is not unlimited, and determined that the

parole board’s reliance on admitted false information constituted “unauthorized

action.” Id. at 1442. Although an inmate has no due-process right to an error-free

determination of parole eligibility, see Greenholtz v. Inmates of Neb. Penal and

Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04 (1979), a prison official may

not engage in “arbitrary and capricious” or “flagrant or unauthorized action,”

4
Thomas v. Sellers, 691 F.2d 487, 489 (11th Cir. 1982), such as knowingly or

admittedly relying on false information in making parole decisions, Monroe, 932

F.2d at 1442 n.11. However, prisoners do not state a due process claim by simply

asserting that erroneous information might have been used during their parole

consideration. Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 940

(11th Cir.1982). Additionally, nothing in due process concepts requires a parole

board to specify the particular “evidence” in the inmate's file or at his interview on

which it rests its discretionary determination to deny release. Greenholtz, 442 U.S.

at 15, 99 S.Ct. at 2108.

Because the Commission did not act in an arbitrary and capricious fashion

by not explaining why certain aggravators were used to calculate his PPRD outside

the matrix, and Walker does not have a liberty interest in certain parole procedures

he alleged were not followed, the district court did not err by dismissing Walker’s

complaint for failure to state a claim. Accordingly, we affirm as to this issue.

Although the Prison Litigation Reform Act (PLRA) does not apply to habeas

corpus proceedings, it does apply to all other civil actions brought by prisoners.

Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir. 1997) (explaining that

“Congress promulgated the PLRA to curtail prisoner tort, civil rights and

conditions litigation, not the filing of habeas corpus petitions”). Section 1915(b) of

5
Title 28 requires that a prisoner who brings a civil action and requests in forma

pauperis status must pay the full amount of the filing fee either in whole or in

installments. This section applies to 42 U.S.C. § 1983 civil actions. Id.

Because Walker filed a pro se civil rights complaint, pursuant to 42 U.S.C.

§ 1983, not a habeas corpus petition, PLRA’s filing fee requirements under 28

U.S.C. § 1915(b) are applicable to Walker. Therefore, the district court did not err

by requiring Walker pay filing fees pursuant to § 1915(b). Accordingly, we affirm

as to this issue.

AFFIRMED.