                                                                             FILED
                                                                 United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                     Tenth Circuit

                             FOR THE TENTH CIRCUIT                     October 22, 2018
                         _________________________________
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
STEPHEN CRAIG BURNETT,

      Plaintiff - Appellant,

v.                                                       No. 17-6141
                                                 (D.C. No. 5:17-CV-00392-M)
MARY FALLIN, Governor of Oklahoma,                      (W.D. Okla.)
in her official capacity, and in her
individual capacity; PATRICIA HIGH, in
her individual capacity; ROBERT MACY,
member of the Pardon and Parole Board, in
his official capacity, and in his individual
capacity; THOMAS C. GILLERT, member
of the Pardon and Parole Board, in his
official capacity, and in his individual
capacity; WILLIAM LATIMER, in his
individual capacity; VANESSA PRICE, in
her individual capacity; ERIKA DENTON,
Parole Investigator for Pardon and Parole
Board, in her official capacity, and in her
individual capacity C. ALLEN McCALL,
member of the Pardon and Parole Board, in
his official capacity; MICHAEL STEELE,
member of the Pardon and Parole Board, in
his official capacity; ROBERTA
FULLERTON, member of the Pardon and
Parole Board, in her official capacity, ∗

      Defendants - Appellees.
                      _________________________________


      ∗
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), C. Allen McCall,
Michael Steele, and Roberta Fullerton, current members of the Oklahoma Pardon and
Parole Board, are automatically substituted for Patricia High, William Latimer, and
Vanessa Price in their official capacities as former members of the Oklahoma Pardon
and Parole Board.
                            ORDER AND JUDGMENT**
                        _________________________________

Before BRISCOE, KELLY, and McHUGH, Circuit Judges.
                   _________________________________


       Stephen Craig Burnett is an Oklahoma prisoner serving a sentence of life with

the possibility of parole. Mr. Burnett filed a complaint under 42 U.S.C. § 1983,

asserting that changes in Oklahoma’s parole process violated his rights under the Due

Process Clause, the Ex Post Facto Clause, and the Eighth Amendment. The district

court dismissed Mr. Burnett’s complaint based on a failure to state a claim upon

which relief can be granted and as barred by Heck v. Humphrey, 512 U.S. 477 (1994).

On appeal, Mr. Burnett argues he pleaded sufficient facts to allow the inference that,

for all intents and purposes, changes in the parole process converted his sentence of

life with the possibility of parole into a sentence of life without the possibility of

parole. Mr. Burnett further argues the relief requested in his complaint did not

include speedier release, thus placing his claims outside the contours of the Heck-bar.

       We conclude Mr. Burnett’s complaint fails to allege facts capable of

supporting a due process, ex post facto, or Eighth Amendment claim. And because

Mr. Burnett’s complaint does not state a claim upon which relief can be granted, we

affirm the district court’s judgment without deciding whether Heck bars any of

Mr. Burnett’s claims.

       **
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
                                             2
                                 I.     BACKGROUND

           A.   Mr. Burnett’s Imprisonment & the Oklahoma Parole System

       In 1994, Mr. Burnett pleaded guilty to first-degree murder and automobile

larceny charges. The charges stemmed from Mr. Burnett shooting his wife after he

learned she was having an affair, placing her body in the trunk of a car, driving the

car to Texas, and fleeing to the Philippines. In accord with the terms of the plea

agreement, Mr. Burnett received a sentence of life with the possibility of parole on

the first-degree murder conviction. 1

       Oklahoma’s parole system is two tiered, with the Pardon and Parole Board

(“Parole Board”) acting as an initial gatekeeper and the Governor having the ultimate

authority and responsibility for granting or denying parole relative to those inmates

for whom the Parole Board issues a favorable recommendation. See Okla. Stat. tit.

57, § 332.16. At the time of Mr. Burnett’s offense, the statute establishing parole

criteria stated, in pertinent part:

       [I]t shall be the duty of the Pardon and Parole Board to cause an
       examination to be made at the penal institution where the person is
       assigned, and to make inquiry into the conduct and the record of the said
       person during his custody in the Department of Corrections, which shall
       be considered as a basis for consideration of said person for
       recommendation to the Governor for parole.

Okla. Stat. tit. 57, § 332.7(A) (West 1993). With the exception of prospective

parolees “convicted of three or more felonies arising out of separate and distinct


       1
        Mr. Burnett received a fifteen-year sentence on the automobile larceny
conviction, to run consecutively with his sentence on the first-degree murder
conviction.
                                           3
transactions, with three or more incarcerations for such felonies,” the then-governing

statute was silent as to whether the Parole Board should consider an individual’s

offense of conviction or criminal history. See Okla. Stat. tit. 57, § 332.7 (West 1993).

      As Mr. Burnett committed his offense before July 1, 1998, he became eligible

for consideration for parole upon the completion of one-third of his sentence. See

Okla. Stat. tit. 57, § 332.7(A) (West 2004). Where a defendant is serving a life

sentence, his sentence is treated as a forty-five-year sentence for purposes of the one-

third requirement in title 57, section 332.7(A) of the Oklahoma Statutes. See

Anderson v. State, 130 P.3d 273, 282 (Okla. Crim. App. 2006) (citing Okla. Pardon &

Parole Bd. Policy 004 I.A.3.a.). Thus, the Parole Board deemed Mr. Burnett first

eligible for parole on his life sentence in 2010. 2 Lisa Reading, a parole investigator,

drafted a report to the Parole Board that detailed Mr. Burnett’s offense conduct, his

prison disciplinary record, and his work history. Although Ms. Reading assigned Mr.

Burnett a “[r]isk score: 1 (Low),” she recommended denying parole based on Mr.

Burnett’s history of prison misconduct reports. Suppl. ROA at 15. The Parole Board

adopted the recommendation and denied parole.

      The Parole Board next considered Mr. Burnett for parole in 2013. 3 Erika


      2
         A grant of parole on the life sentence would not have resulted in Mr.
Burnett’s release; rather, it would have permitted Mr. Burnett to commence service
on his fifteen-year automobile larceny sentence. See Okla. Stat. tit. 57, § 332.7(H).
      3
        Subsequent to Mr. Burnett’s offense, the frequency of parole hearings
changed. Prior to Mr. Burnett’s offense, reconsideration of parole occurred “one year
from the month of denial, unless directed otherwise by majority vote” with the parole
board having the authority to “set off reconsideration for a maximum of five years.”
                                            4
Denton 4 served as the parole investigator and submitted a report to the Parole Board

in October 2013. Like the 2010 report, the October 2013 report detailed the facts of

Mr. Burnett’s offense; outlined Mr. Burnett’s prison disciplinary record, work

performance in prison, and participation in prison programs; and provided a risk

assessment. Ms. Denton assigned Mr. Burnett a total risk score of negative 2 and an

overall risk level of low. Focusing on his recent conduct in prison, Ms. Denton

recommended parole, stating: “Yes. Parole to the [consecutive sentence] case is

recommended. Offender has spent 20 years of this sentence and has maintained clear

conduct for over 3 years. When he was able to work his evaluations were excellent to

outstanding.” Suppl. ROA at 19; ROA at 12.

      In November 2013, new criteria governing parole took effect. The new criteria

require the Parole Board to “consider the prior criminal record of inmates under

consideration for parole recommendation or granting of parole.” Okla. Stat. tit. 57,

§ 332.7(I). In December 2013, the Parole Board rejected the favorable

recommendation in the October 2013 report and denied parole without explanation.

The Parole Board next considered Mr. Burnett for parole in 2016, with Ms. Denton

again serving as the parole investigator. Like the previous reports, the 2016 report


Henderson v. Scott, 260 F.3d 1213, 1214 n.2 (10th Cir. 2001) (quoting Okla. Pardon
& Parole Bd., Policy & Procedures Manual, Policy 004(I)(B)(1)(a)). A 1999 statutory
amendment, however, now precludes reconsideration of parole for at least three years
from a denial of parole for any person convicted of a violent crime. Okla. Stat. tit. 57,
§ 332.7(D)(1) (West 1999). This three-year limitation on the reconsideration of a
denial of parole remains in effect. Okla. Stat. tit. 57, § 332.7(D)(1).
      4
          At the time of her October 2013 report, Ms. Denton was Ms. Dunigan.
                                           5
detailed the facts of Mr. Burnett’s offense and summarized his prison disciplinary

record, work performance in prison, and participation in prison programs. Unlike the

previous reports, however, the 2016 report did not include a risk assessment. And,

also unlike the previous reports, the recommendation in the 2016 report focused on

the nature of Mr. Burnett’s offense, not his conduct in prison. Specifically, in

recommending against parole, Ms. Denton wrote: “No, parole is not recommended

due to the heinous nature of the crime. Offender not only killed his wife, but put her

body in the trunk of a car not to be found for days. After the murder, he fled the

country in hopes of never being caught.” Suppl. ROA at 22; ROA at 12. The Parole

Board denied parole, again without providing an explanation. Mr. Burnett’s next

opportunity for parole consideration is scheduled for December 2019.

                            B.     Mr. Burnett’s Complaint

      Following the 2016 denial of parole, Mr. Burnett filed a three-count complaint

pursuant to 42 U.S.C. § 1983. Mr. Burnett named Governor Mary Fallin, the five

members of the Parole Board, and Ms. Denton as defendants. 5 In count one, Mr.

Burnett raised a procedural and substantive due process claim, alleging the changes

in the statutory scheme governing the parole process converted his sentence of life

with the possibility of parole into a sentence of life without the possibility of parole




      5
        Mr. Burnett named all defendants in both their individual and official
capacities.

                                            6
and violated the terms of his plea agreement. 6 In count two, Mr. Burnett raised an Ex

Post Facto Clause challenge to the retroactive application of parole procedures

adopted after he committed his offense, focusing on an as applied challenge rather

than a facial challenge. In count three, Mr. Burnett raised an Eighth Amendment

claim, alleging the denial of parole had a “devastating affect [sic] on his mental state

of mind” and caused him to suffer depression, severe headaches, loss of sleep, and

stomach pain. 7 ROA at 16–17. Mr. Burnett sought money damages, declaratory relief

in the form of an order stating that application of the new parole procedures violated

his constitutional rights, and injunctive relief requiring the Parole Board to apply the

1993 procedures at future parole hearings. Mr. Burnett, however, specifically

disclaimed any attempt to obtain an order from the federal court granting him

clemency, parole, or release from prison.

               C.     Dismissal of Complaint & Arguments on Appeal




      6
         Although the allegations in support of this claim focused primarily on the
requirement that the Parole Board must now consider his offense of conviction and
offense conduct, Mr. Burnett identified seven other changes in the parole process: (1)
he is no longer permitted to personally appear before the Parole Board; (2) he no
longer can be transferred to a lower security prison facility; (3) victims are permitted
to object to parole; (4) he has to prove that he has a job and a place to live upon
release; (5) the Oklahoma Department of Corrections (“ODOC”) no longer maintains
records on inmate accomplishments; (6) the ODOC no longer conducts a “risk
assessment” as part of the parole investigation report; and (7) parole hearings occur
less frequently.
      7
        In the alternative, Mr. Burnett indicated the allegations in count three raised a
state-law claim for intentional infliction of emotional distress.

                                            7
      A magistrate judge screened Mr. Burnett’s complaint pursuant to 28 U.S.C.

§§ 1915(e), 1915A and recommended dismissing all three claims and assigning Mr.

Burnett a strike under the Prison Litigation Reform Act (“PLRA”). Relative to the

issues argued on appeal, the magistrate judge concluded: (1) Heck barred Mr. Burnett

from recovering money damages on his due process claim; (2) Mr. Burnett failed to

state a due process claim because there is no Fourteenth Amendment liberty interest

in parole; (3) Mr. Burnett failed to state an ex post facto claim because any increase

in punishment from the changes in the parole process was “speculative” and

“attenuated”; and (4) Mr. Burnett failed to state an Eighth Amendment claim because

his allegations were “amorphous” and did not allege a significant risk of harm to

personal safety. 8 Over Mr. Burnett’s objections, the district court adopted the report

and recommendations, dismissed Mr. Burnett’s action, and assigned Mr. Burnett a

strike under the PLRA.

      Through a pro se opening brief, Mr. Burnett challenged the dismissal of each

of his three claims for relief, as well as the assignment of a strike under the PLRA.

This court appointed Mr. Burnett counsel. Through counsel, Mr. Burnett argued his


      8
         The magistrate judge also faulted Mr. Burnett for not producing “evidence”
in support of his ex post facto claim. ROA at 34–36. As the case was only at the
pleadings stage, Mr. Burnett did not have an opportunity to present evidence, and the
magistrate judge’s statement on this point was clearly erroneous. Furthermore,
although Mr. Burnett objected to the magistrate judge’s conclusion on this point, the
district court did not address this objection and adopted the magistrate judge’s report
and recommendation without modification and without considering any of Mr.
Burnett’s other objections. See 28 U.S.C. § 636 (“A judge of the court shall make a
de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.”).
                                           8
claims were not barred by Heck and his complaint alleged sufficient facts to advance

a due process claim and an ex post facto claim. On the sufficiency of the pleadings

issue, Mr. Burnett argues he has a due process interest in the state abiding by the plea

agreement and that the changes in the parole process amount to a breach of the plea

agreement. In response, Appellees (1) argue the plea agreement did not contain a

promise of a fixed set of parole criteria, only an opportunity to be considered for

discretionary parole; and (2) repeat the magistrate judge’s conclusion that a prisoner

does not have a liberty interest in the parole process. Turning to the ex post facto

claim, Mr. Burnett argues factual development through discovery might result in

evidence showing that, as applied, the new parole process presents a significant risk

of increasing the duration of his imprisonment. In response, Appellees argue Mr.

Burnett cannot show a significant risk of an increased duration of incarceration under

the new parole process because (1) nothing prevented the Parole Board from

considering his criminal history under the 1993 statute; (2) a favorable

recommendation by the Parole Board does not mean Mr. Burnett would be paroled as

the governor might reject the recommendation; and (3) Mr. Burnett’s complaint

contains allegations that defeat his claim, in that he alleges the governor would reject

any favorable recommendation by the Parole Board regardless of the criteria it used.

                                   II.     DISCUSSION

                              A.         Standard of Review

      “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain ‘a

short and plain statement of the claim showing that the pleader is entitled to relief.’”

                                              9
Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). “Dismissal for

failure to state a claim is a legal question we review de novo.” Young v. Davis, 554

F.3d 1254, 1256 (10th Cir. 2009). This remains the case where the dismissal is the

result of a district court screening a complaint pursuant to 28 U.S.C.

§§ 1915(e), 1915A rather than a dismissal following a Federal Rule of Civil

Procedure 12(b)(6) motion. See id. (discussing standard of review in context of

§§ 1915(e), 1915A dismissal). When reviewing the sufficiency of the pleadings for

purposes of Rule 8(a), “[w]e must accept all the well-pleaded allegations of the

complaint as true and must construe them in the light most favorable to the plaintiff.”

Id. (quotation marks omitted). To avoid dismissal, “a complaint must contain enough

allegations of fact . . . ‘to state a claim to relief that is plausible on its face.’” Khalik,

671 F.3d at 1190 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Finally, “we must construe a pro se appellant’s complaint liberally” and “[d]ismissal

of a pro se complaint for failure to state a claim is proper only where it is obvious

that the plaintiff cannot prevail on the facts he has alleged and it would be futile to

give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217, 1218 (10th

Cir. 2007) (quotation marks omitted).

                            B.      Due Process Clause Claim

       Mr. Burnett’s complaint can be liberally construed as raising two claims under

the Due Process Clause: (1) he has a standalone due process right with respect to the

procedures used at his parole hearings and (2) his due process rights were violated



                                              10
because application of the new parole procedures breaches his plea agreement. 9 We

consider each potential claim in turn. Concluding that neither set of allegations states

a plausible violation of the Due Process Clause, we affirm the district court’s

dismissal of count one of Mr. Burnett’s complaint.

1. Changes in Parole Process

      The Due Process Clause of the Fourteenth Amendment states, in pertinent part,

“nor shall any State deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. “‘To determine whether due process

requirements apply in the first place, we must look not to the “weight” but to the

nature of the interest at stake.’” Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7 (1978) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 570–71

(1972)). In accord with the language of the Fourteenth Amendment, “[t]he Due

Process Clause applies when government action deprives a person of liberty or

property.” Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (quoting Greenholtz,

442 U.S. at 7). “A liberty interest may arise from the Constitution itself, by reason of

guarantees implicitly in the word ‘liberty,’ or it may arise from an expectation or

interest created by state laws or policies.” Straley v. Utah Bd. of Pardons, 582 F.3d

1208, 1212 (10th Cir. 2009) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)).

      9
         Although Mr. Burnett’s counsel focuses exclusively on the latter of these two
Due Process Clause arguments, Mr. Burnett raised the former argument in his pro se
opening brief. See Pro Se Opening Br. at 7 (“While actually being paroled is
discretionary, prisoners do have a legal right to be considered for parole, and via a
scheme that does not violate procedural and/or substantive due process.”). Because
counsel’s brief is a supplemental opening brief, arguments raised in Mr. Burnett’s pro
se brief are properly before us.
                                           11
“The extent of the due process protection for prisoners . . . is significantly less than

that guaranteed to free persons.” Id.

       The question of whether a prisoner has a liberty interest in parole is well-

settled, with courts concluding that a liberty interest generally does not arise. See

Greenholtz, 442 U.S. at 7 (“There is no constitutional or inherent right of a convicted

person to be conditionally released before the expiration of a valid sentence . . . .

[T]he conviction, with all its procedural safeguards, has extinguished that liberty

right. . . .”); id. (“[T]here simply is no constitutional guarantee that all executive

decisionmaking must comply with standards that assure error-free determinations.”);

Straley, 582 F.3d at 1214 (“[T]he mere existence of a purely discretionary parole

authority creates no entitlement and, therefore, no concomitant federal due process

interest.”); Malek, 26 F.3d at 1015 (“Not only is there no constitutional or inherent

right to receive parole prior to the expiration of a valid sentence, but, absent state

standards for the granting of parole, decisions of a parole board do not automatically

invoke due process protections.” (citing Greenholtz, 442 U.S. at 7–8)). An exception

to this general rule against the existence of a liberty interest exists where a state’s

parole statute “sufficiently limits the discretion of a parole board” such that “a

prisoner has a legitimate claim of entitlement to [parole].” Straley, 582 F.3d at 1212–

13. A recognized example of such an exception is when a state statute makes parole

mandatory rather than discretionary. See id. at 1213.

       Here, the 1993 version of title 57, section 332.7 of the Oklahoma Statutes

established a discretionary parole scheme that did not sufficiently limit the Parole

                                            12
Board’s discretion so as to convey upon Mr. Burnett a liberty interest in parole.

Although the 1993 version of § 332.7 required the Parole Board to consider the

prospective parolee’s conduct in prison, this consideration was “a basis for

consideration of said person for recommendation to the Governor for parole.” Okla.

Stat. tit. 57, § 332.7(A) (West 1993) (emphasis added). Based on our construction of

§ 332.7, implicit in the emphasized language was the Parole Board’s ability to, as an

individual case might warrant, consider other relevant factors. Furthermore, the 1993

version of § 332.7 placed no limitations on the governor’s exercise of her authority to

grant or deny parole. Accordingly, where the governing state statute placed no

meaningful limitations on the Parole Board’s or the governor’s discretion to deny

parole, Mr. Burnett cannot establish a “legitimate claim of entitlement to [parole],”

see Straley, 582 F.3d at 1213 (emphasis added), and cannot state a due process claim

based solely and independently on the changes in the parole process.

2. Breach of Plea Agreement

      “Interpreting the terms of a plea bargain involves a two-step process. The court

must first examine the nature of the prosecutor’s promise. Next, the court examines

this promise based upon the defendant’s reasonable understanding upon entry of the

guilty plea.” Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir. 1996) (citation

omitted). “[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).

“If the government breaches express or implied terms of a plea agreement, a violation

                                           13
of due process occurs.” Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000)

(quoting United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)).

       Mr. Burnett’s allegations on this matter boil down to three contentions: (1) he

entered into a plea for a sentence of life with the possibility of parole; (2) it was his

understanding, based on the advice of plea counsel, that he would not spend the rest

of his life in prison; and (3) the changes in parole process greatly diminish his

prospects for parole such that his sentence is effectively a life without parole

sentence. For three reasons, Mr. Burnett’s allegations fail to state a plausible due

process claim based on a breach of his plea agreement.

       First, Mr. Burnett fails to allege his plea agreement promised him a fixed set of

parole criteria. In this respect, Mr. Burnett’s complaint suffers from the same

deficiency from which the breach-of-plea claim in Cunningham suffered. There, Mr.

Cunningham alleged the state breached his plea agreement when the parole board

reinterpreted state statutes governing parole so as to render parole in his case

discretionary rather than mandatory. Cunningham, 92 F.3d at 1056–57. As a result,

rather than automatically being paroled after eight-and-a-half years’ imprisonment,

Mr. Cunningham gained only parole eligibility and faced the possibility of having to

serve his full seventeen-year term. See id. Although recognizing the gravity of the

change from mandatory to discretionary parole relative to the execution of

Mr. Cunningham’s term of imprisonment, this court concluded the state did not

breach the plea agreement because “mandatory parole was not a part of the plea offer

[and] [Mr.] Cunningham does not now allege to the contrary.” Id. at 1059; see also

                                            14
Lustagarden v. Gunter, 966 F.2d 552, 554–55 (10th Cir. 1992). Here, Mr. Burnett

does not allege his plea agreement contained a provision that explicitly promised him

a fixed set of parole procedures and criteria. And, as this court in Cunningham did

not read the then-in-effect mandatory parole scheme into Mr. Cunningham’s plea

agreement despite the grave effect of the change on Mr. Cunningham’s ability to

obtain parole, we see no reason to read a fixed parole process into Mr. Burnett’s plea

agreement where the change may have no impact on Mr. Burnett’s ability to obtain

parole. Thus, any post-plea amendment to § 332.7 did not violate a term of Mr.

Burnett’s plea agreement.

      Second, in explicitly conceding the discretionary nature of parole in Oklahoma

and the governor’s crucial role in both appointing members to the Parole Board and

reviewing any favorable parole recommendations, Mr. Burnett implicitly concedes it

was foreseeable at the time of his plea that the views of key individuals in the parole

process might change. Cf. Garner v. Jones, 529 U.S. 244, 253 (2000) (“[W]e can say

with some assurance that where parole is concerned[,] discretion, by its very

definition, is subject to changes in the manner in which it is informed and then

exercised. The idea of discretion is that it has the capacity, and the obligation, to

change and adapt based on experience.”). As such, in the absence of the plea

agreement directly speaking in favor of a fixed parole process, Mr. Burnett cannot

plausibly allege that he reasonably understood the plea agreement to contain a

promise of a fixed parole process.



                                            15
      Third, while Mr. Burnett challenges the applicability of the requirement in

§ 332.7(I) that the Parole Board must consider his offense of conviction, nothing in

the regulations at the time of plea agreement precluded the Parole Board from

considering this information. Tellingly, the pre-amendment form of § 332.7(A)

instructed the Parole Board to examine the prisoner’s conduct during confinement “as

a basis for consideration,” thereby anticipating that the Parole Board would also

assess other relevant factors. In fact, although § 332.7(I) did not take effect until

November 2013, the 2010 and October 2013 parole investigations reports placed

information about the offense of conviction, as well as Mr. Burnett’s offense

conduct, in front of the Parole Board. And, where this information was before the

Parole Board prior to § 332.7(I) taking effect, the Parole Board was aware of and

able to consider Mr. Burnett’s offense of conviction and offense conduct. Thus, even

assuming Mr. Burnett believed, when entering his plea agreement, that the parole

process would remain generally unchanged, it is not apparent from his allegations

that the addition of § 332.7(I) significantly alters the parole process. This is

particularly true when considered in light of (1) the consistent practice of informing

the Parole Board of the offense of conviction and the offense conduct; and (2) the

two-tiered parole system in Oklahoma, which has never placed limitations on the

governor’s authority and discretion to approve or deny a favorable recommendation

by the Parole Board.

      Accordingly, because Mr. Burnett does not allege that his plea agreement

included an express provision guaranteeing him a fixed set of parole criteria, because

                                            16
parole was always discretionary in Oklahoma, and because § 332.7(I) and the other

changes identified in Mr. Burnett’s complaint do not significantly alter the parole

process, Mr. Burnett fails to allege a plausible due process claim based on an alleged

breach of his plea agreement.

                          C.     Ex Post Facto Clause Claim

1. Governing Law

      Article I Section 10 of the United States Constitution “forbids . . . the States to

enact any law ‘which imposes a punishment for an act which was not punishable at

the time it was committed; or imposes additional punishment to that then

prescribed.’” Weaver v. Graham, 450 U.S. 24, 28 (1981) (emphasis added) (quoting

Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325–26 (1867)). “[T]wo critical

elements must be present for a criminal or penal law to be ex post facto: it must be

retrospective, that is, it must apply to events occurring before its enactment, and it

must disadvantage the offender affected by it.” Id. at 29 (citations omitted). Relative

to the second part of the analysis, “the question of what legislative adjustments ‘will

be held to be of sufficient moment to transgress the [ex post facto] prohibition’ must

be a matter of ‘degree.’” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)

(quoting Beazell v. Ohio, 269 U.S. 167, 171 (1925)). A change in law producing only

“the most speculative and attenuated possibility” of increasing the length of

punishment does not violate the prohibition on ex post facto laws. Id. Instead, the

change in law must “produce[] a sufficient risk of increasing the measure of

punishment.” Id. The Supreme Court, however, has affirmatively recognized that

                                           17
“[r]etroactive changes in laws governing parole of prisoners, in some instances, may

be violative of [the ex post facto] precept.” Garner, 529 U.S. at 250.

      A plaintiff may raise either a facial or an as applied challenge under the Ex

Post Facto Clause. See id. at 255 (“When the rule does not by its own terms show a

significant risk, the respondent must demonstrate, by evidence drawn from the rule’s

practical implementation by the agency charged with exercising discretion, that its

retroactive application will result in a longer period of incarceration than under the

earlier rule.”). “Whether a particular law retroactively increases a criminal

punishment is often a close question” because whether the risk of increased

punishment rises to the level of a significant risk, rather than only a speculative and

attenuated risk, often involves a fact-specific inquiry. Lynce v. Mathis, 519 U.S. 433,

450 (1997) (Thomas, J., concurring in part and concurring in the judgment); see also

Garner, 529 U.S. at 250 (“Whether retroactive application of a particular change in

parole law respects the prohibition on ex post facto legislation is often a question of

particular difficulty when the discretion vested in a parole board is taken into

account.”). To answer this close question, a court should consider “the general

operation of the . . . parole system.” Garner, 529 U.S. at 255.

2. Analysis

   a. Retrospective application

      Mr. Burnett pleaded sufficient facts to satisfy the first element of an ex post

facto claim. Simply put, the adoption of § 332.7(I) occurred after Mr. Burnett

committed his offense (and after he pleaded guilty), yet the provision applies to his

                                           18
parole consideration. Thus, whether Mr. Burnett pleaded sufficient facts to advance

an ex post facto claim rises and falls on the second element of that claim.

   b. Sufficient risk of increased punishment

      In his complaint, Mr. Burnett alleged the change in criteria had a clear impact

on the recommendation in Ms. Denton’s 2016 parole investigation report in that she

recommended parole prior to the adoption of § 332.7(I) but recommended against

parole after its adoption. Mr. Burnett further alleged the change in criteria resulted in

ODOC and the parole investigator no longer including a risk assessment in the report

to the Parole Board, an assessment favorable to his parole prospects. And a liberal

construction of Mr. Burnett’s complaint might allow for the inference that, prior to

the 2013 amendment to § 332.7, the Parole Board’s primary focus in denying or

recommending parole was on an inmate’s conduct in prison.

      The aforementioned allegations might be sufficient to plead a sufficient risk of

increased punishment if the Parole Board possessed final authority to grant parole.

As discussed above, however, Oklahoma’s parole system is two-tiered, with the

governor having ultimate discretionary authority over whether Mr. Burnett is granted

parole. And Mr. Burnett’s complaint does not include any allegation that the

likelihood of the governor granting parole changed as a result of the adoption of

§ 332.7(I) or any other change in the parole procedures.

      To the contrary, Mr. Burnett alleged Governor Fallin “championed a ‘tough on

crime’ agenda”; “made it clear in public media that she will not sign parole approval

for any violent offender”; and “appointed members [to] the [Parole] Board who are

                                           19
all either former law enforcement officers or a Judge,” all with the goal of limiting

the prospects of an inmate obtaining parole. ROA at 11. As Governor Fallin

possesses ultimate discretion to grant or deny parole following a favorable

recommendation by the Parole Board, these allegations about Governor Fallin

preclude the inference that there is a sufficient likelihood that a favorable

recommendation by the Parole Board would result in Mr. Burnett actually receiving

parole.

       When the complaint is read on the whole and in light of the two-tiered parole

review system in Oklahoma, Mr. Burnett has not pleaded sufficient facts to plausibly

allege that the adoption of § 332.7(I), or any other change in the parole process,

created a sufficient risk of increasing his incarceration on his first-degree murder

conviction. Rather, taking Mr. Burnett’s allegations as true, Governor Fallin’s views

on crime and parole are a “but for” cause of Mr. Burnett’s continued incarceration

regardless of the criteria used by the Parole Board when making parole suitability

recommendations. Accordingly, Mr. Burnett’s complaint fails to plead facts capable

of plausibly supporting the second element of his ex post facto claim, and we affirm

the district court’s dismissal of this claim.

                           D.     Eighth Amendment Claim 10




       10
         Although counsel did not advance an argument relative to the dismissal of
Mr. Burnett’s Eighth Amendment claim, Mr. Burnett challenged the dismissal of this
claim in his pro se opening brief. Pro Se Opening Br. at 3, 13. Accordingly, we
consider the matter.
                                            20
      “Because ‘only the unnecessary and wanton infliction of pain implicates the

Eighth Amendment,’ a prison official must act with ‘deliberate indifference to inmate

health or safety’ to violate the inmate’s constitutional rights.” Castillo v. Day, 790

F.3d 1013, 1020 (10th Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 834

(1994)). As a result, a claim for “[d]eliberate indifference has both an objective and a

subjective component.” Id. “The objective prong of the deliberate indifference test

examines whether the prisoner’s medical condition was sufficiently serious to be

cognizable under the Cruel and Unusual Punishment Clause.” Al-Turki v. Robinson,

762 F.3d 1188, 1192 (10th Cir. 2014) (internal quotation marks omitted). “To prevail

on the subjective component, the prisoner must show that the defendant knew the

prisoner faced a substantial risk of harm and disregarded that risk[] by failing to take

reasonable measures to abate it.” Castillo, 790 F.3d at 1021 (emphasis added)

(quotation marks omitted).

      Mr. Burnett alleged the denial of parole amounted to deliberate indifference

because it had a “devastating affect [sic] on his mental state of mind” and caused him

to suffer depression, severe headaches, loss of sleep, and stomach pain. ROA at 16–

17. Mr. Burnett’s complaint, however, does not contain any allegations that he

reported his symptoms to anyone at his facility of confinement, no less any of the

named defendants. Nor does Mr. Burnett allege that any of the named defendants

attempted to deny him treatment for his symptoms. Accordingly, even if his alleged

symptoms amount to a serious medical condition for purposes of the objective

component of an Eighth Amendment claim, Mr. Burnett fails to plead any allegations

                                           21
relative to the subjective component of an Eight Amendment deliberate indifference

claim. Therefore, we affirm the district court’s dismissal of Mr. Burnett’s Eighth

Amendment claim.

              E.     Assignment of Strike & In Forma Pauperis Status

      Section 1915(g) of Title 28 creates the three-strikes rule for prisoners

proceeding in forma pauperis and states:

      In no event shall a prisoner bring a civil action or appeal a judgment in a
      civil action or proceeding under this section if the prisoner has, on 3 or
      more prior occasions, while incarcerated or detained in any facility,
      brought an action or appeal in a court of the United States that was
      dismissed on the grounds that it is frivolous, malicious, or fails to state a
      claim upon which relief may be granted, unless the prisoner is under
      imminent danger of serious physical injury.

“When an action or appeal is dismissed as frivolous, as malicious, or for failure to

state a claim under 28 U.S.C. § 1915(e)(2)(B), the dismissal counts as a strike.”

Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011). Whether a

dismissal for failure to state a claim is with or without prejudice is “immaterial” to

the three-strikes analysis because the dismissal counts as a strike either way. Childs

v. Miller, 713 F.3d 1262, 1266 (10th Cir. 2013).

      In affirming the district court’s dismissal of Mr. Burnett’s complaint, we must

affirm the district court’s assignment of a strike. However, after a careful review of

the arguments on appeal, we conclude that, although Mr. Burnett did not prevail, he

raised non-frivolous arguments for reversing the district court’s judgment such that

we do not assign him a strike relative to this appeal. And, because Mr. Burnett raised



                                           22
non-frivolous arguments on appeal, we grant his motion to proceed in forma

pauperis. 11 See 28 U.S.C. § 1915.

                                III.   CONCLUSION

      We AFFIRM the district court’s dismissal of Mr. Burnett’s complaint, under

28 U.S.C. §§ 1915(e), 1915A, for failure to state a claim upon which relief can be

granted. We further AFFIRM the district court’s assignment of a strike relative to

the dismissal of Mr. Burnett’s complaint. Concluding, however, that Mr. Burnett

raised non-frivolous arguments on appeal, we do not assign Mr. Burnett a strike

relative to this appeal, and we GRANT his motion to proceed in forma pauperis.

                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




      11
          Although the dismissal of Mr. Burnett’s complaint by the district court will
be his third strike, this third strike does not preclude the granting of in forma
pauperis status on appeal because the third strike will not ripen for purposes of
§ 1915(g) until the dismissal becomes final. See Thompson v. Drug Enf’t Admin., 492
F.3d 428, 432 (D.C. Cir. 2007) (“Although section 1915(g) nowhere expressly states
that dismissals must be final to count as strikes, we think it fairly implied.”); see also
Smith v. Veterans Admin., 636 F.3d 1306, 1314 (10th Cir. 2011) (discussing ripening
of strike in terms of when time for appeal expired and judgment became final).
                                           23
