                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15246            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           MAY 24, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                              D.C. Docket No. 4:09-cv-00100-RH-AK

THOMAS EUGENE THORNE,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                               versus

CHAIRPERSON FLORIDA PAROLE COMMISSION,
TENA M. PATE,
Parole Commissioner,
MONICA DAVID,
Parole Commissioner,

llllllllllllllllllllllllllllllllllllllll                           Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Northern District of Florida
                                 ________________________

                                           (May 24, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Thomas Thorne, a Florida prisoner proceeding pro se, appeals the district

court’s order dismissing his 42 U.S.C. § 1983 civil rights complaint. On appeal,

Thorne argues that the district court erred in determining that his challenge to

Florida’s parole practices could not be brought under § 1983. He also contends

that the defendants were not entitled to Eleventh Amendment immunity. Thorne

further asserts that the district court erred in concluding that he had not stated a

claim under the Ex Post Facto Clause. Finally, Thorne argues that he stated valid

claims for relief under the Due Process and Equal Protection Clauses of the

Fourteenth Amendment. For the reasons stated below, we affirm.

                                           I.

      Thorne filed a pro se complaint under 42 U.S.C. § 1983 against Frederick

B. Dunphy, Chairperson of the Florida Parole Commission, and Parole

Commissioners Tena M. Pate and Monica David. Thorne explained that,

subsequent to his original sentencing, the Florida legislature made numerous

changes to the methods used to calculate eligibility for parole. Among other

things, the legislature changed the “matrix time range setting,” added new

aggravating factors, altered the time frames for review hearings, created

“alternative programs rather than violations,” changed the number of parole

commissioners, and gave the Parole Commission the authority to make policy and

                                           2
promulgate rules. Thorne argued that these changes violated the Ex Post Facto

Clause of the federal constitution to the extent that they had the effect of reducing

his eligibility for parole. He asked the district court to order that his parole

eligibility be reconsidered using the 1978 parole guidelines and any subsequent

changes that worked to his benefit. Thorne later sought leave to amend his

complaint to add claims under the Eighth Amendment and the Due Process and

Equal Protection Clauses of the Fourteenth Amendment.

      The district court dismissed Thorne’s complaint for failure to state a claim

upon which relief could be granted, Fed.R.Civ.P. 12(b)(6). The district court

noted that changes to a parole system can violate the Ex Post Facto Clause if the

changes create a significant risk of increasing the defendant’s punishment, but the

court observed that Thorne’s complaint was “long on conclusions and short on

specifics” as to how the changes in Florida’s parole procedures affected his term

of imprisonment. The district court allowed Thorne to file an amended complaint

identifying specific changes in Florida’s parole procedures that subjected him to a

significant risk of increased punishment.

      In his amended complaint, Thorne asserted that Fla.Stat. § 947.174(b)(1)

violated the Ex Post Facto Clause because it provided for parole reviews once

every five years, rather than the two-year reviews that he previously had received.

                                            3
He asserted that the longer time period between reviews had the effect of

increasing his punishment because the delay prevented him from presenting new

information that might lower his projected release date. He explained that the

length of his sentence affected his custody level, his ability to transfer to other

correctional institutions, and his right to participate in vocational training and

substance abuse classes.

      Thorne’s amended complaint also asserted an equal protection claim.

Thorne argued that other prisoners who, like him, had been convicted of murder,

and who also had a history of parole violations had been given more favorable

release dates and more frequent parole hearings. Next, Thorne raised a due

process claim. He argued that “Examiner Jennings” had violated his right to due

process by revoking his parole. He further contended the five-year delay between

parole hearings violated due process because it was selectively applied and was

based on vague and arbitrary rules. Finally, Thorne argued that his presumptive

parole release date violated the Eighth Amendment and the Florida Constitution.

      Attached to Thorne’s complaint was a document showing how Thorne’s

presumptive parole release date was calculated. The Hearing Examiner initially

had recommended that Thorne receive a presumptive release date of February 8,

2012. The Parole Commission, however, rejected that recommendation and set a

                                           4
presumptive release date of February 8, 2034. The Commission also specified that

Thorne’s next parole interview would take place in March 2012. The Commission

explained that Thorne’s next interview would be held in five years, rather than two

years, because Thorne had been convicted of second degree murder, and because it

was not reasonable to expect that he would be granted parole within the next five

years. The Commission identified five factors that supported its determination

that Thorne was unlikely to be paroled before 2012: (1) the offense involved the

use of a firearm and knife; (2) the offense involved multiple separate offenses;

(3) an escalating or continuing pattern of criminal conduct; (4) Thorne was a

parole violator; and (5) any release might cause unreasonable risk to others.

      The district court dismissed Thorne’s amended complaint. First, the district

court observed that Thorne still had not identified any changes to the Florida

parole system that created a substantial risk of increasing his punishment.

Accordingly, the court determined that the amended complaint failed to state an ex

post facto claim. The district court noted that the amended complaint raised

additional claims that the Parole Commission had failed to follow state law in

setting Thorne’s presumptive parole release date, and that Thorne was treated less

favorably than similarly-situated inmates. The district court concluded that those

allegations failed to state a claim under § 1983 for several reasons. First, the court

                                          5
observed that state officials had Eleventh Amendment immunity in federal courts

from claims alleging violations of state law. Second, the district court noted that

Thorne could not bring a claim under § 1983 if success on that claim necessarily

would end or shorten his period of incarceration. Finally, the district court

concluded that the amended complaint had not stated a claim for selective

enforcement because Thorne had not shown that he was treated differently from

similarly-situated inmates.

                                         II.

      We review a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo.

Speaker v. U.S. Dep’t of Health and Human Services Centers for Disease Control

and 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 dismiss, a complaint must “state a

claim to relief that is plausible on its face.” Bell Atlantic 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. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868

(2009). The complaint must include enough facts “to raise a right to relief above

                                          6
the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.

      The Supreme Court has explained that a prisoner may not use 42 U.S.C.

§ 1983 to challenge “the fact or duration of his confinement.” Wilkinson, 544 U.S.

at 78, 125 S.Ct. at 1245 (quotation omitted). A prisoner seeking release from

custody, or a reduction in his sentence, must seek habeas relief instead. Id. at 78,

125 S.Ct. at 1245. Nevertheless, a claim challenging parole procedures may be

brought under § 1983 if success on that claim would not automatically reduce the

defendant’s term of imprisonment. Id. at 82, 125 S.Ct. at 1248.

      Here, some of Thorne’s claims challenged the fact and duration of his

confinement. Specifically, Thorne argued that Examiner Jennings violated his

right to due process by revoking his parole, and that the Parole Commission acted

improperly by setting a release date of 2034, rather than following the hearing

examiner’s recommendation of an earlier date. Success on those claims would

necessarily have invalidated the revocation of Thorne’s parole or shortened his

term of imprisonment. Therefore, the district court properly concluded that those

particular claims were not cognizable under § 1983. See Wilkinson, 544 U.S. at

78, 125 S.Ct. at 1245. The district court correctly recognized that Thorne’s other

challenges to Florida's parole procedures were cognizable under § 1983, as

success on those claims would not necessarily lead to Thorne’s release from

                                          7
custody. See id. at 82, 125 S.Ct. at 1248.

                                         III.

      The Eleventh Amendment bars state-law claims against a state in federal

court, even where the plaintiff is only seeking prospective relief. Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 103-06, 104 S.Ct. 900, 909-11, 79

L.Ed.2d 67 (1984). Suits against a state officer in his or her official capacity are

considered to be suits against the state. Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989).

      In this case, the district court correctly determined that the defendants were

entitled to Eleventh Amendment immunity to the extent that Thorne was arguing

that the Parole Commission failed to follow state law in setting his presumptive

parole release date. See Pennhurst, 465 U.S. at 103-06, 104 S.Ct. at 909-11.

Notably, the district court did not conclude that the defendants were entitled to

Eleventh Amendment immunity with respect to Thorne’s federal-law claims, for

which he was only seeking prospective relief. Instead, the court dismissed those

claims on other grounds.

                                         IV.

      The federal constitution prohibits the states from enacting ex post facto laws

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

                                          8
Const., art. I., § 10, cl. 1; Garner v. Jones, 529 U.S. 244, 249, 120 S.Ct. 1362,

1367, 146 L.Ed.2d 236 (2000). The Supreme Court has explained that retroactive

changes in the law governing parole of prisoners can violate the Ex Post Facto

Clause if those changes create a significant risk of prolonging the prisoner’s

incarceration. Garner, 529 U.S. at 251, 120 S.Ct. at 1368.

       Generally, Florida law provides that parole interviews are to be held every

two years. Fla.Stat. § 947.174(1)(a). In 1997, the Florida legislature amended the

parole statutes to provide that prisoners convicted of certain serious offenses,

including murder, would have parole interviews once every five years. Fla.Stat.

§ 947.174(1)(b).1 This five-year period between interviews applies only if the

Parole Commission “finds that it is not reasonable to expect that parole will be

granted at a hearing during the following years and states the bases for the finding

in writing.” Id.

       We do not have any published opinions addressing whether Fla.Stat.

§ 947.174(1)(b) violates the Ex Post Facto Clause, but the Supreme Court has

upheld the constitutionality of a similar California parole statute. California Dep’t

of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).



      1
        In 2010, subsection (1)(b) was amended to increase the time interval between parole
interviews from five years to seven years.

                                            9
The statute at issue in Morales permitted California’s parole board to defer parole

hearings for up to three years if the prisoner’s offense involving the taking of a

life, and if the parole board found that it was not reasonable to expect that parole

would be granted at a hearing during the following years. Id. at 503, 115 S.Ct. at

1600. The statute also required the board to explain its decision in writing. Id.

The Supreme Court concluded that this statute did not violate the Ex Post Facto

Clause because: (1) it applied only to a narrow class of prisoners “for whom the

likelihood of release on parole is quite remote”; (2) it only affected subsequent

hearings, meaning that it never applied until after an initial hearing had been held;

(3) it required the parole board to make specific findings justifying the deferral,

and to explain its decision in writing. Id. at 510-11, 115 S.Ct. at 1603-04.

      In this case, Thorne failed to establish that the five-year interval between

parole hearings carried a significant risk of prolonging his incarceration. Section

947.174 is similar to the California statute that the Supreme Court upheld in

Morales, as it applies only to a narrow group of prisoners, and requires a specific,

written finding that “it is not reasonable to expect that parole will be granted at a

hearing during the following years.” See Fla.Stat. § 947.174(1)(b); Morales, 514

U.S. at 510-11, 115 S.Ct. at 1603-04. Here, the Parole Commission determined

that it was unlikely that Thorne would be eligible for parole prior to his next

                                          10
scheduled hearing in 2012 given the nature of his conviction, his status as a parole

violator, and the risk that his release would pose to others. Thus, the five-year

interval between reviews did not carry a significant likelihood of prolonging

Thorne’s incarceration. Accordingly, the district court properly concluded that

Thorne had failed to state an ex post facto claim. See Garner, 529 U.S. at 251,

120 S.Ct. at 1368.

                                          V.

      To plead an equal protection claim, a plaintiff must allege that “through

state action, similarly situated persons have been treated disparately.” Thigpen v.

Bibb County, Ga., Sheriff’s Dep’t, 223 F.3d 1231, 1237 (11th Cir. 2000),

abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Supreme Court has

recognized “class of one” equal protection claims where a plaintiff asserts that she

was irrationally discriminated against on an individual basis, rather than as a

member of a particular group. Village of Willowbrook v. Olech, 528 U.S. 562,

564, 120 S.Ct. 1073, 1074, 145 L.Ed.2d 1060 (2000). A plaintiff can establish a

“class of one” claim by showing that he was “intentionally treated differently from

others similarly situated and that there is no rational basis for the difference in

treatment.” Id. at 564, 120 S.Ct. at 1074. “To be ‘similarly situated,’ the

                                          11
comparators must be prima facie identical in all relevant respects.” Grider v. City

of Auburn, Ala., 618 F.3d 1240, 1264 (11th Cir. 2010) (quotation and emphasis

omitted).

       A plaintiff seeking to bring a procedural due process claim must establish

that: (1) he was deprived of a constitutionally protected liberty or property interest,

(2) through state action, and (3) he was not provided with a constitutionally

adequate process to contest the deprivation. Arrington v. Helms, 438 F.3d 1336,

1347 (11th Cir. 2006). We have explained that Florida’s parole system does not

create a protected liberty interest in parole because the Parole Commission always

has discretion over whether to grant or deny parole. Damiano v. Florida Parole

and Probation Comm’n, 785 F.2d 929, 931-32 (11th Cir. 1986); Staton v.

Wainwright, 665 F.2d 686, 688 (5th Cir. Unit B, 1982).2

       Here, Thorne’s amended complaint failed to state an equal protection claim

because it did not show that he was treated differently from similarly-situated

prisoners. Thorne did assert that other prisoners who had been convicted of

murder and who had previous parole violations had received earlier release dates

and were interviewed every two years rather than every five years, but he did not



       2
        We are bound by decisions issued by a Unit B panel of the former Fifth Circuit. See Stein
v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

                                               12
show that those other prisoners were similar to him in all relevant respects. For

example, it is unclear whether the other prisoners had been convicted of multiple

separate offenses, whether they had an escalating history of criminal conduct, or

whether their release might cause an unreasonable risk to others, three factors that

the Parole Commission relied upon in Thorne’s case. In short, Thorne’s

allegations of disparate treatment were not detailed enough to raise his right to

relief above a speculative level. See Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.

      Thorne’s amended complaint also failed to state a procedural due process

claim. As we have explained, Florida’s parole system does not give rise to a

protected liberty interest because the decision on whether to grant parole is left to

the discretion of the Parole Commission. See Damiano, 785 F.2d at 931-32;

Staton, 665 F.2d at 688. Although some of Florida’s procedures regarding parole

have changed since Damiano and Staton were decided, the Parole Commission

still has substantial discretion over whether to grant or deny parole. Cf. Fla.Stat.

§ 947.18. As Thorne’s complaint did not allege a violation of a protected liberty

interest, the district court properly dismissed his due process claim. See

Arrington, 438 F.3d at 1347.

      Accordingly, after review of the record and the parties’ briefs, we affirm the

dismissal of Thorne’s complaint.

                                          13
AFFIRMED.




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