                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                          ELEVENTH CIRCUIT
                                                                             JUNE 21, 2012
                                            No. 11-13659
                                        Non-Argument Calendar                 JOHN LEY
                                                                               CLERK
                                      ________________________

                                D.C. Docket No. 4:10-cv-00281-GRJ



MICHAEL W. HARRELL,

llllllllllllllllllllllllllllllllllllllll                                     Plaintiff-Appellant,

                                               versus

FLORIDA PAROLE COMMISSION,

                                                    llllllllllllllllllllllllllllllllllllllllDefendant,

CHAIRMAN, FLORIDA PAROLE COMMISSION,
VICE CHAIRMAN, FLORIDA PAROLE COMMISSION,
COMMISSIONER, FLORIDA PAROLE COMMISSION,

llllllllllllllllllllllllllllllllllllllll                                Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Northern District of Florida
                                 ________________________
                                        (June 21, 2012)
Before DUBINA, Chief Judge, EDMONDSON and BARKETT, Circuit Judges.

PER CURIAM:

      Appellant Michael W. Harrell, a Florida state prisoner proceeding pro se,

appeals the district court’s dismissal for failure to state a claim of his 42 U.S.C.

§ 1983 civil rights complaint against the Florida Parole Commission

(“Commission”) and its members for violations of his rights to due process, equal

protection, and protection against ex post facto laws. On appeal, Harrell argues

that the district court erred in dismissing his complaint because he alleged facts

sufficient to support his claims that the Commission (1) acted arbitrarily and

capriciously in determining his presumptive parole release date (“PPRD”) in

violation of his due process rights, (2) categorically denied parole to prisoners

with mandatory minimum sentences in violation of his rights to equal protection,

and (3) retroactively increased his punishment by denying him the possibility of

parole.

      We review de novo the dismissal of a complaint under Fed. R. Civ. P.

12(b)(6) for failure to state a claim. Speaker v. U.S. Dep’t of Health & Human

Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.

2010). We accept the factual allegations in the complaint as true and construe

them in the light most favorable to the plaintiff. Id. To survive a motion to

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dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d

929 (2007). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). The complaint must include enough

facts “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at

555, 127 S. Ct. at 1965. “Pro se pleadings are held to a less stringent standard

than pleadings drafted by attorneys and will, therefore, be liberally construed.”

See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per

curiam) (addressing a pro se motion to vacate under 28 U.S.C. § 2255).

      An individual may bring a private cause of action under 42 U.S.C. § 1983

against any person who, acting under color of state law, abridges rights created by

the Constitution and laws of the United States. Maine v. Thiboutot, 448 U.S. 1,

4–5, 100 S. Ct. 2502, 2504–05, 65 L. Ed. 2d 555 (1980). A claim challenging

parole procedures may be brought under § 1983 if success on that claim would not

automatically reduce the defendant’s terms of imprisonment. Wilkinson v. Dotson,

544 U.S. 74, 81–82, 125 S. Ct. 1242, 1248, 161 L. Ed. 2d 253 (2005). Claims that

would entitle a prisoner to a new parole eligibility review or parole hearing are

                                           3
cognizable under § 1983. See id.

      The Due Process Clause of the Fourteenth Amendment provides that no

state shall “deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. Generally, due process is violated when the

state deprives a person of a protected liberty interest through a constitutionally

inadequate process. Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir. 2006).

There is no federal constitutional right to parole. Greenholtz v. Inmates of Neb.

Penal & Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668

(1979). However, a state may establish a protected liberty interest in parole by

creating a legitimate expectation of parole. Jones v. Ray, 279 F.3d 944, 946 (11th

Cir. 2001) (per curiam). Florida’s parole statutes do not create a liberty interest

because the Florida Parole Commission retains discretion over whether to grant or

deny parole. Damiano v. Fla. Parole & Prob. Comm’n, 785 F.2d 929, 931–32

(11th Cir. 1986) (per curiam). Nonetheless, even without a protected liberty

interest, a due process claim may be available if the Commission engaged in

“flagrant or unauthorized action” or treated a prisoner “arbitrarily and

capriciously” in making a parole determination, such as by knowingly or

admittedly relying on false information. Monroe v. Thigpen, 932 F.2d 1437,

1441–42 (11th Cir. 1991); Thomas v. Sellers, 691 F.2d 487, 489 (11th Cir. 1982)

                                          4
(per curiam).

      However, the Commission need not specify the particular evidence on

which it relied in making a parole determination. Greenholtz, 442 U.S. at 15, 99

S. Ct. at 2108; see also Slocum v. Ga. State Bd. of Pardons & Paroles, 678 F.2d

940, 942 (11th Cir. 1982) (holding that there is no due process right to inspect a

parole file). Moreover, prisoners do not state a due process claim by simply

asserting that erroneous information might have been used during their parole

consideration. See Slocum, 678 F.2d at 941 n.1, 942 (affirming dismissal of

plaintiff’s due process claim that the parole board considered erroneous

information in denying him parole).

      The Equal Protection Clause of the Fourteenth Amendment provides that

“[n]o State shall . . . deny to any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, § 1. A prisoner asserting an equal

protection claim must demonstrate that “(1) he is similarly situated with other

prisoners who received more favorable treatment; and (2) his discriminatory

treatment was based on some constitutionally protected interest such as race.”

Jones, 279 F.3d at 946–47 (internal quotation marks omitted).

      The U.S. Constitution prohibits states from enacting ex post facto laws that

retroactively increase the penalty for a crime after it has been committed. U.S.

                                           5
Const. art. I, § 10, cl. 1; Garner v. Jones, 529 U.S. 244, 249–50, 120 S. Ct. 1362,

1367, 146 L. Ed. 2d 236 (2000); see also United States v. De La Mata, 266 F.3d

1275, 1286 (11th Cir. 2001) (stating that “[t]he ex post facto clause prohibits the

enactment of statutes which . . . make more burdensome the punishment for a

crime”).

      Based on our review of the record, we conclude that Harrell has failed to

allege facts sufficient to state facially plausible claims for relief. See Iqbal, 556

U.S. at ___, 129 S. Ct. at 1949. Harrell’s due process claim was properly

dismissed because the decision whether to grant or deny parole is within the

Commission’s discretion, and Harrell did not plausibly allege that the Commission

acted arbitrarily and capriciously in denying him parole. As to his equal

protection claim, Harrell neither alleged that he was treated differently than

similarly situated comparators nor that the alleged differential treatment was based

on a constitutionally protected interest. Finally, Harrell’s ex post facto claim was

properly dismissed because parole is a discretionary decision of the Commission

and Harrell’s punishment, two consecutive life terms of imprisonment, was not

increased by the denial of parole. Accordingly, we affirm the district court’s

judgment of dismissal.




                                           6
       AFFIRMED.1




       1
       Harrell’s motion requesting reconsideration of his previous request for record assistance
is DENIED.

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