                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 07-10629                   JUNE 27, 2007
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________               CLERK


                     D. C. Docket No. 05-02462-CV-TCB-1

WILLIAM M. TAYLOR,


                                                       Plaintiff-Appellant,

                                    versus

MILTON E. NIX, JR.,
Chairman, State Board of Pardons and Paroles,
GARLAND R. HUNT,
Vice-Chairman,
GARDFIELD HAMMONDS, JR.,
EUGENE P. WALKER,
L. GALE BUCKNER,
Members,

                                                      Defendants-Appellees.

                         ________________________

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

                                 (June 27, 2007)

Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:

      Appellant William Taylor (“Taylor”), a Georgia state prisoner, appeals

pro se the district court’s dismissal, pursuant to 28 U.S.C. § 1915A, of his

substantive due process claim, as well as the district court’s order granting

summary judgment for the five named members of the Georgia State Board of

Pardons and Paroles (“Board”) on the remaining claims asserted in his second

amended complaint. Taylor also appeals the district court’s denial of his motion to

compel the discovery of certain privileged documents, and its failure to exercise its

equitable powers to force the Board to grant him parole. After reviewing the

record and reading the parties’ briefs, we affirm the judgment of dismissal.

                        I.   Substantive Due Process Claim

      “We review a district court’s sua sponte dismissal of a [claim] for failure to

state a claim for relief under § 1915A(b)(1) de novo.” Harden v. Pataki, 320 F.3d

1289, 1292 (11th Cir. 2003). Pro se briefs, such as Taylor’s appellate brief, are

entitled to liberal construction. Cofield v. Ala. Public Serv. Comm’n, 936 F.2d 512,

514 n.2 (11th Cir. 1991).

      The Prison Litigation Reform Act of 1995 (“PLRA”) requires a district court

to screen prisoner civil rights actions. 28 U.S.C. § 1915A(a). A district court must

“review, before docketing, if feasible or, in any event, as soon as practicable after



                                           2
docketing, a complaint in a civil action in which a prisoner seeks redress from a

governmental entity or officer or employee of a governmental entity.” Id. A

district court must dismiss the claim if it “is frivolous, malicious, or fails to state a

claim upon which relief may be granted.” 28 U.S.C. 1915A(b)(1).

       In this case, the district court dismissed Taylor’s due process claim for

failure to state a claim upon which relief could be granted. A complaint fails to

state a claim upon which relief may be granted when “‘it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.’” Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th

Cir. 2001) (citation omitted).

       Section 1983 does not create any substantive rights. Almand v. DeKalb

County, Ga., 103 F.3d 1510, 1512 (11th Cir. 1997). “[I]t merely provides a

remedy for deprivations of federal statutory and constitutional rights.” Id. To

sustain a cause of action under § 1983, a plaintiff must prove that he was deprived

of a federal right by a person acting under color of state law. Griffin v. City of

Opa- Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).

       The Due Process Clause provides that “[n]o State shall . . . deprive any

person of life, liberty, or property, without due process of law.” U.S. C ONST.

amend. XIV, § 1. “The substantive component of the Due Process Clause protects



                                             3
those rights that are ‘fundamental,’ that is, rights that are ‘implicit in the concept of

ordered liberty.’” Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002)

(citations omitted). “Substantive due process rights are created by the

Constitution, and ‘no amount of process can justify [their] infringement.’” Id.

(citation omitted). In order to have a substantive due process claim, Taylor must

have a substantive right created by the Constitution.

      In analyzing a substantive due process claim, a court must initially craft a

“‘careful description of the asserted right.’” Doe v. Moore, 410 F.3d 1337, 1343

(11th Cir. 2005) (citations omitted). Second, a court “must determine whether the

asserted right is one of those fundamental rights and liberties which are,

objectively, deeply rooted in this Nation’s history and tradition, and implicit in the

concept of ordered liberty, such that neither liberty nor justice would exist if they

were sacrificed.” Id. (citations and internal quotation marks omitted).

      “[T]here is no federal constitutional right to parole.” Jones v. Ray, 279 F.3d

944, 946 (11th Cir. 2001) (citing Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104 (1979)).

      “[C]onduct by a government actor will rise to the level of a substantive due

process violation only if the act can be characterized as arbitrary or conscience

shocking in a constitutional sense.” Waddell v. Hendry County Sheriff’s Office,



                                            4
329 F.3d 1300, 1305 (11th Cir. 2003). “‘[O]nly the most egregious official

conduct can be said to be arbitrary in the constitutional sense.’” Id. (citation

omitted).

       After reviewing the record, we conclude that the district court did not err in

dismissing Taylor’s substantive due process claim.

       Liberally construing his appellate brief, Taylor alleges that but for the

Board’s arbitrary and capricious actions he would have been paroled. Taylor,

however, cites no caselaw holding that a life-sentenced prisoner has a right to

parole, and, to the contrary, there is no federal constitutional right to parole. See

Jones, 279 F.3d at 946. He also cites no caselaw recognizing a substantive due

process violation in a failure to follow certain procedures in considering a parole

request. Accordingly, Taylor did not assert a cognizable substantive due process

claim in his first complaint, and we conclude that the district court properly

dismissed it.1

       Also, to the extent that Taylor’s appellate brief may be liberally construed to

allege that the district court erred in failing to rule on his motion for


       1
          Taylor did not argue before the district court and, even liberally construing his
appellate brief, does not argue on appeal that the Board violated his due process rights by relying
on erroneous or improper documents in his clemency file in denying him parole. Cf. Monroe v.
Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991). Therefore, Taylor has waived any error with
respect to this issue. See United States v. Silvestri, 409 F.3d 1311, 1338 n.18 (11th Cir.), cert.
denied, 126 S. Ct. 772 (2005).

                                                 5
reconsideration of the dismissal of his due process claim, such an argument is

without merit. The district court did rule on this motion, concluding that it was

moot because Taylor filed a second amended complaint – which did not include a

substantive due process claim – before it could rule on the merits of his motion for

reconsideration.

                          II. Denial of Motion to Compel

      We review the denial of a plaintiff’s motion to compel discovery for an

abuse of discretion. Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821,

826 (11th Cir. 2000).

      Under the Federal Rules of Civil Procedure, a party “may obtain discovery

regarding any matter, not privileged, that is relevant to the claim or defense of any

party.” Fed.R.Civ.P. 26(b) (emphasis added).

      Under Georgia law, “[a]ll information, both oral and written, received by the

members of the board in the performance of their duties under this chapter and all

records, papers, and documents coming into their possession by reason of the

performance of their duties under this chapter shall be classified as confidential

state secrets until declassified by a resolution of the board passed at a duly

constituted session of the board.” O.C.G.A. § 42-9-53(b).

      The record demonstrates that the district court, after reviewing the contested



                                           6
documents in camera, explicitly found that they were subject to the confidential

state secrets privilege. Rather than challenging this ruling on appeal, however,

Taylor exclusively argues in his appellate brief that he was entitled to the

documents because they were relevant to his retaliation claim. By virtue of this,

we conclude that Taylor has waived any error with respect to the district court’s

finding that the privilege applied.2 See Silvestri, 409 F.3d at1338 n.18. Thus, even

assuming arguendo that the documents were relevant to one or more of his claims,

they were still subject to the confidential state secrets privilege and, therefore, were

not discoverable pursuant to Fed.R.Civ.P. 26(b).3

                                 III. Ex Post Facto Claim

       We review de novo a district court’s grant of summary judgment. Twin City

Fire Ins. Co., Inc. v. Ohio Cas. Ins. Co., Inc., 480 F.3d 1254, 1258 (11th Cir.

2007). Similarly, “[w]e review de novo the district court’s interpretation and

application of the statute of limitations.” Brown v. Georgia Bd. of Pardons &

       2
         Although Taylor argued before the district court that the Board waived this privilege by
including some of the documents in its summary judgment brief, he does not present any such
argument on appeal, nor does he cite to any decisions involving waiver of a privilege.
Consequently, Taylor has abandoned his waiver claim on appeal. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument that has not
been briefed before the court is deemed abandoned and its merits will not be addressed”).
       3
         We also conclude that Taylor’s alternative argument, that the Board only produced six
of the contested documents and withheld other documents, is unsupported by the record. The
Board produced more than six documents for the district court’s in camera review, and there is
nothing in the record to suggest that the Board withheld any other documents that were found in
Taylor’s clemency file.

                                                7
Paroles, 335 F.3d 1259, 1261 n.2 (11th Cir. 2003).

      Summary judgment is appropriate when “there is no genuine issue as to any

material fact” and “the moving party is entitled to a judgment as a matter of law.”

Fed.R.Civ.P. 56(c). A court “should view the evidence and any inferences that

may be drawn in the light most favorable to the non-moving party.” Porter v. Ray,

461 F.3d 1315, 1320 (11th Cir.), cert. denied, 127 S. Ct. 516 (2006).

      “‘Federal courts apply their forum state’s statute of limitations for personal

injury actions to actions brought pursuant to 42 U.S.C. § 1983.’” Lovett v. Ray,

327 F.3d 1181, 1182 (11th Cir. 2003) (citation omitted). Georgia’s statute of

limitations for personal injury actions, and, thus, the statute of limitations for a

§ 1983 claim arising out of events occurring in that state, is two years. Id.

      “Federal law determines when the statute of limitations begins to run.”

Lovett, 327 F.3d at 1182. The statute of limitations ordinarily “‘does not begin to

run until the facts which would support a cause of action are apparent or should be

apparent to a person with a reasonably prudent regard for his rights.’” Id. (citation

omitted).

      “‘The critical distinction in the continuing violation analysis is whether the

plaintiff complains of the present consequence of a one time violation, which does

not extend the limitations period, or the continuation of that violation into the



                                            8
present, which does.’” Lovett, 327 F.3d at 1183 (citation omitted).

      In Lovett, we addressed a similar claim that the Georgia Board of Pardons

and Paroles’s decision to delay an inmate’s parole hearing, pursuant to a newly

implemented Board policy, constituted a continuing violation of his constitutional

rights against Ex Post Facto laws. Id. We ultimately concluded that the decision

not to consider an inmate for parole again until 2006 “was a one time act with

continued consequences, and the limitations period is not extended.” Id.

      Following Lovett, we determined that an inmate could not rely on the

continuing violation doctrine to save his ex post facto claim, where he had been

notified in 1995 of a new Board policy allowing a parole reconsideration set-off for

up to eight years, but had waited until 2002 to file his lawsuit, even though the

Board had denied him parole as recently as 2001. See Brown 335 F.3d at 1261.

      We also rejected the argument that each setting of a parole hearing

constituted a distinct and separate injury, holding:

      Each time Brown’s parole reconsideration hearing is set, it does not
      amount to a distinct and separate injury. See, e.g., Smith v. Grubbs, 42
      Fed.Appx. 370, 371 (10th Cir. 2002) (unpublished). Rather, Brown’s
      injury, to the extent it ever existed, was when the Georgia Parole
      Board applied its new policy, eliminating the requirement of parole
      review every three years for Brown, retroactively. It is the decision in
      1995 that forms a potential basis for Brown's claim. It was also at this
      point that Brown could have discovered the factual predicate of his
      claim. The successive denials of parole do not involve separate factual
      predicates and therefore do not warrant separate statute-of-limitations

                                           9
       calculations.

Id. at 1261-62 (emphasis added).

       Taylor initially learned in 1996 that the Board had implemented a new

policy requiring that life-sentenced offenders, like himself, would be reviewed for

parole at least once every eight years, and not on an annual basis.4 Taylor,

however, did not file his complaint until 2005, more than two years later. Thus, his

ex post facto claim was untimely, and the continuing violation doctrine cannot save

it.5 See Lovett, 327 F.3d at 1183; Brown, 335 F.3d at 1261.

                                    IV. Retaliation Claim 6

       “The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). “A prisoner can establish retaliation by demonstrating that



       4
         We note that, contrary to Taylor’s argument on appeal, the Board’s decision to adopt
the contested parole policy constituted the factual predicate of this ex post facto claim. See
Brown, 335 F.3d at 1261-62.
       5
           Even liberally construing his appellate brief, Taylor does not argue that the district court
erred in refusing to address expressly his ex post facto claim based on the Georgia Constitution,
or that it abused its discretion in failing to exercise supplemental jurisdiction over this state law
claim, nor does he cite any Georgia law or statutes. Therefore, he has waived any error with
respect to this issue. See Silvestri, 409 F.3d at 1338 n.18.
       6
         We reject the Board’s argument that this claim is moot because all of the litigation
documents were removed from Taylor’s file before his parole hearing in 2006. As the district
court explained, removal of the litigation documents from Taylor’s file “does not necessarily
mean that the Board did not or could not in the future retaliate against [him] based on the
Board’s knowledge of the contents of these documents.”

                                                  10
the prison official’s actions were ‘the result of his having filed a grievance

concerning the conditions of his imprisonment.’” Id. (quoting Wildberger v.

Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989)). Likewise, the First Amendment

insulates from retaliation a prisoner who engages in a protected activity on behalf

of other inmates. Adams v. James, 784 F.2d 1077, 1081 (11th Cir. 1986).

      If a defendant meets the initial burden of demonstrating the absence of a

genuine issue of material fact, a plaintiff must “establish[] a causal relationship”

between his complaints and the alleged retaliatory actions in order to survive a

summary judgment motion. Farrow, 320 F.3d at 1249.

      “‘[C]onclusory allegations without specific supporting facts have no

probative value.’” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.

2000) (citation omitted). Moreover, at least in the employment context, we have

held that, “in the absence of any other evidence of causation, a three and one-half

month proximity between a protected activity and an adverse employment action is

insufficient to create a jury issue on causation.” Drago v. Jenne, 453 F.3d 1301,

1308 (11th Cir. 2006).

      With respect to Taylor’s 2004 parole hearing, there is no evidence of causal

relationship between his protected activities and the denial of his parole at that

time. Cf. Farrow, 320 F.3d at 1249. The undisputed evidence demonstrates that



                                           11
the Board actually granted Taylor parole in 1988, three years after the litigation

documents were prepared. Taylor has offered no explanation on why the Board

would grant him parole within three years of the preparation of the litigation

documents, but then retaliate against him for these documents in 2004, nearly

sixteen years later, by denying him parole at that hearing.

      Moreover, given the temporal remoteness of the preparation of the litigation

documents and the 2004 parole hearing, we conclude that these documents do not

have any probative value of retaliation. Cf. Drago, 453 F.3d at 1308.

      Also, while the Board adhered to a policy of separating litigation files from

clemency files, Taylor never established that written threats leveled against prison

officials could not be considered during a parole hearing. Thus, even assuming

arguendo that his 2004 parole denial was based, in part, on these threats, Taylor

did not demonstrate the Board acted unlawfully in considering these threats when it

denied him parole.

      Finally, while Taylor asserts on appeal that he assisted other inmates in

filing grievances and lawsuits against the Board, there is no evidence in the record

to support this allegation, or to provide a time-frame as to when these events

allegedly occurred. Accordingly, these conclusory allegations do not provide any

probative evidence of retaliation. Cf. Leigh, 212 F.3d at 1217.



                                          12
      With respect to his parole denial in 2006 and the extension of his next

tentatively set parole hearing to November 2014, Taylor has failed to show that

these actions were based, at least in part, on retaliatory motives. The Board

presented an affidavit from Masters, who explained that Taylor’s unscheduled

parole hearing in 2006 was not predicated on retaliatory motives. Instead, Masters

indicated that she discovered during the course of the present lawsuit certain

litigation files which were improperly included in Taylor’s clemency file, and so

she removed those files and then resubmitted his file in 2006, earlier than

tentatively scheduled, to ensure that he received a proper parole review.

      By contrast, Taylor offered nothing to contradict Masters’s affidavit, except

an unsupported argument that, because that the 2006 parole hearing was conducted

approximately five months after he filed the present lawsuit, retaliatory motive

must be presumed. This unsupported accusation was not sufficient to create a

genuine issue of material fact, however. Cf. Leigh, 212 F.3d at 1217.

      In addition, Taylor did not present any evidence to contradict or to

undermine the Board’s proffered reason for denying him parole – that his release

“would not be compatible with the welfare of society . . . due to the serious nature

of the offense(s) for which [he] [was] convicted.” The undisputed evidence

showed that Taylor was originally convicted of two counts of kidnaping a boy, and



                                          13
upon his parole on those convictions, he sodomized and molested another boy, and

upon release from those convictions, he kidnaped a third boy. Additionally, while

in prison, Taylor wrote threatening letters to prison officials.

      Finally, it is undisputed that Taylor’s next parole hearing currently set in

2014 is within eight years of his latest parole hearing in 2006, as required by Board

policy. Thus, the Board scheduled Taylor’s next parole hearing within the time

frame articulated in the amended Board policy.

                             V. Equal Protection Claim

       The Equal Protection Clause provides, in relevant part, that “[n]o State shall

make or enforce any law which shall . . . deny to any person within its jurisdiction

the equal protection of the laws.” U.S. C ONST., amend. XIV, § 1. We have

recognized “that an inmate may challenge the denial of pardon or parole on equal

protection grounds.” Fuller v. Georgia State Bd. Of Pardons & Paroles, 851 F.2d

1307, 1310 (11th Cir. 1988).

      The Equal Protection Clause is implicated in “class of one” claims, the type

of claim alleged by Taylor, “‘where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment.’” Campbell v. Rainbow City, Ala.,

434 F.3d 1306, 1314 (11th Cir.), cert. denied, 127 S. Ct. 559 (2006) (citation



                                           14
omitted). “A showing that two projects were similarly situated requires some

specificity.” Id. We have cited with approval the decision of Racine Charter One,

Inc. v. Racine Unified School Dist., 424 F.3d 677 (7th Cir. 2005), which concluded

that “[t]o be considered ‘similarly situated,’ comparators must be prima facie

identical in all relevant respects.” Racine, 424 F.3d at 680 (quoted in Campbell,

434 F.3d at 1314).

      “[A]n unexplained statistical showing of disparate racial treatment by a

single entity over a period of time [may] raise the inference of an equal protection

violation.” Fuller, 851 F.2d at 1310. However, “exceptionally clear proof” of

discrimination as compared to similarly situated comparators is required. Id.

      In Fuller, an inmate attempted to use unexplained statistics to prove that he

was discriminated against when compared to similarly situated white inmates who

were paroled. Id. We ultimately rejected the inmate’s evidence as irrelevant,

noting that “[t]he decision to grant or deny parole is based on many factors such as

criminal history, nature of the offense, disciplinary record, employment and

educational history, etc. Fuller [the inmate] does not show himself to be similarly

situated, considering such factors, with any inmates who were granted parole.” Id.

      After reviewing the record, we conclude that the district court here did not

err in granting summary judgment for the Board on Taylor’s equal protection



                                          15
claim.

         Taylor attempts to use statistical calculations to prove that there was a “huge

disparity” between the amount of time that he has been required to serve in prison

as compared to the amount of time served by other “parole violators,” and paroled

life-sentenced inmates serving sentences for murder, rape, armed robbery,

kidnaping, or aggravated sodomy. However, these unexplained statistics do not

provide “exceptionally clear proof” of discrimination as compared to similarly

situated comparators. See Fuller, 851 F.2d at 1310. Taylor’s comparator

categories – “parole violators,” and paroled life-sentenced inmates serving

sentences for “murder,” “rape,” “armed robbery,” “kidnaping,” or “aggravated

sodomy” – are extremely broad, and do not demonstrate that his self-identified

comparators are “prima facie identical in all relevant respects.” Cf. Racine Charter

One, Inc., 424 F.3d at 680 (persuasive authority) (citation omitted). These

categories do not indicate that any of the comparators were recidivists who had

been convicted of the same crimes of which Taylor was convicted (some of which

were sexually based and others which were not), nor that all of their crimes

involved minor children. Futher, Taylor does not explain whether these

comparators had been paroled a number of times previously and had re-offended,

or whether they threatened prison officials while incarcerated.



                                            16
        Further, even assuming arguendo that Taylor could demonstrate that he had

been intentionally treated differently from others similarly situated, he has not

shown that the Board acted irrationally in doing so. Taylor’s criminal history,

recidivism, and threats against prison officials provided a rational basis for the

Board to find that parole “would not be compatible with the welfare of society.”

        Accordingly, we conclude that the Board was entitled to summary judgment

on Taylor’s “class of one” equal protection claim. See Campbell, 434 F.3d at

1314.

        For the foregoing reasons, we affirm the judgment of dismissal.7

        AFFIRMED.




        7
          We also conclude that the district court did not abuse its discretion in failing to exercise
its equitable powers to force the Board to grant Taylor parole.

                                                  17
