                            NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 09a0157n.06
                                    Filed: February 23, 2009

                                                  No. 07-1181

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


Rodney Allen Franks,                                       )
                                                           )
       Plaintiff-Appellant                                 )
                                                           )
v.                                                         )     ON APPEAL FROM THE UNITED
                                                           )     STATES DISTRICT COURT FOR THE
John S. Rubitschun, et al.,                                )     WESTERN DISTRICT OF MICHIGAN
                                                           )
       Defendants-Appellees                                )
                                                           )
                                                           )



BEFORE:           MERRITT, MOORE, and COLE, Circuit Judges.


       MERRITT, Circuit Judge. Rodney Franks, a prisoner in the Michigan penal system,

brought suit under 42 U.S.C. § 1983 against the seven members of the Michigan Parole Board,

alleging that their decisions to deny him parole had violated several of his constitutional rights.

Before defendants had been served, the district court dismissed the case under the Prison Litigation

Reform Act for failure to state a claim.1 See 28 U.S.C. § 1915(e)(2)(B)(ii). On appeal, Franks

abandons most of his claims and argues only that his complaint adequately states an equal protection

violation under the “class of one” theory. Because the district court failed to consider the




       1
           Because defendants were never served, they did not submit a brief or appear at oral argument on appeal.
No. 07-1181
Franks v. Rubitschun

applicability of the class-of-one theory of equal protection, we reverse and remand for further

consideration.

                                            Background

       On October 14, 1999, Franks, who was eighteen at the time, pleaded guilty to first-degree

criminal sexual misconduct. He had grown up in foster homes and been the victim of sexual abuse

before being adopted into the Franks family as a teenager. After adoption, he engaged in sexual

misconduct with his adoptive brother, who was nine years old at the time. On November 4, 1999,

Franks was sentenced to 42 to 140 months’ imprisonment. The judge explained that the sentence,

which was lower than the one recommended by the Michigan Department of Corrections or by the

sentencing guidelines, was based on his consideration of Franks’s age, personal history, and lack of

criminal record; by psychiatric reports indicating that Franks was a good candidate for therapy and

rehabilitation; and by a Victim Impact Statement submitted by his adoptive parents asking that

Franks receive help and not be punished too harshly.

       On May 19, 2002, Franks received his first parole hearing, and the Board denied his parole.

In each of the next four years, the Board again considered and denied his parole. Each time, the

Board justified its decision by referring to the nature of Franks’s crime: that it had involved sexual

misconduct, that it had violated a position of trust or authority, that the victim was a family member

and a minor, and that it demonstrated pedophilic tendencies. In four of the five statements

concerning denial (all but the 2004 statement), the Board also cited “Correctional Adjustment” as

a reason for denying parole, referring to “misconducts” that Franks had received while imprisoned.



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Franks v. Rubitschun

The Board’s 2006 statement concerning denial also cited Franks’s “long standing” “history of

substance abuse” as a reason for denying parole.

       On October 23, 2006, Franks filed a pro se complaint against the members of the Michigan

Parole Board, asserting that defendants had arbitrarily denied him parole and used false information

as a pretextual justification for what was in fact animus against him. Franks disputes the Parole

Board’s claims that he has received any significant misconduct citations or has any history of

substance abuse. The complaint asks for “injunctive relief, or other appropriate relief as will compel

and/or require Defendants to afford Plaintiff with fair and meaningful parole review,” as well as

“monetary punitive and compensatory damages.”

       Before the complaint had been served on defendants, the District Court referred the complaint

to a magistrate judge for recommendations. Pursuant to the Prison Litigation Reform Act, 28 U.S.C.

§§ 1915(e)(2), 1915A, the magistrate recommended that Franks’s complaint be dismissed for failure

to state a claim upon which relief can be granted. In relevant part, the magistrate concluded that

Franks had failed to state an equal protection violation because he had not alleged that he was a

member of a protected class. Over Franks’s written objections, see 28 U.S.C. § 636(b)(1)(c), the

district court adopted the report and dismissed the complaint. This timely appeal followed.

                                             Discussion

       Franks, represented on appeal by appointed counsel, contends that his complaint states an

equal protection violation under the “class of one” theory. We agree that the District Court clearly

erred when it adopted the magistrate’s view that an equal protection claim cannot be made out unless

the plaintiff alleges membership in a protected class. As we have explained, the Equal Protection

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Franks v. Rubitschun

Clause “prohibits discrimination by government which either burdens a fundamental right, targets

a suspect class, or intentionally treats one differently than others similarly situated without any

rational basis for the difference.” TriHealth, Inc. v. Bd. of Comm’rs, Hamilton County, Ohio, 430

F.3d 783, 788 (6th Cir. 2005). Membership in a protected class triggers heightened review, which

is frequently determinative of success on the merits; but it should not be mistaken for a prerequisite

to stating a claim in the first place. Because the district court never considered the applicability of

the class-of-one theory of equal protection — the only issue we have before us — we reverse and

remand for further consideration.

         The Supreme Court recognized the viability of class-of-one claims2 in Village of Willowbrook

v. Olech, noting that the Equal Protection Clause’s purpose “is to secure every person within the

State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express

terms of a statute or by its improper execution through duly constituted agents.” 528 U.S. 562, 564

(2000) (per curiam) (quotations omitted). In Olech, the Court laid out the basic requirements for a

valid class-of-one claim: a plaintiff must allege “that she has been intentionally treated differently

from others similarly situated and that there is no rational basis for the difference in treatment.” Id.3


         2
           Although such claims are typically referred to as class-of-one claims, there is no requirement that the
challenged government action single out one solitary person. As the Court explained in Olech, “[w]hether the complaint
alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is
immaterial for equal protection analysis.” 528 U.S. at 564 n.*.

         3
           More recently, Engquist v. Oregon Department of Agriculture held that the “‘class of one’ theory of equal
protection has no place in the public employment context.” 128 S.Ct. 2146, 2148-49 (2008). Some courts have read
Engquist broadly to suggest that individualized, discretionary decisions can rarely, if ever, be challenged in class-of-one
actions. See, e.g., United States v. Moore, 543 F.3d 891, 900-01 (7 th Cir. 2008); Adams v. Meloy, 287 F. App’x 531,
534 (7 th Cir. 2008). But Engquist’s holding was specifically limited to the public-employment context, the concerns of
which the Court described as “unique.” Engquist, 128 S.Ct. at 2156, 2151. And its reliance on the “crucial difference”
between government acting as sovereign and government acting as employer, id. At 2151, suggests that Engquist’s

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Franks v. Rubitschun

         As we understand it, Franks’s argument on appeal is that his complaint, leniently construed,

states a class-of-one claim as follows: Michigan’s policies do not permit members of the parole

board knowingly to insert falsified information into a prisoner’s parole file, nor do they permit

members to base a denial of parole on such information. The parole board has deviated from this

policy, however, in its treatment of Franks, and it has done so on the basis of personal animus, rather

than on any rational basis.

         The district court should consider whether Franks has stated a valid class-of-one equal

protection claim.

                                                   Conclusion

         For these reasons, the decision of the district court is REVERSED and the case is

REMANDED for further proceedings.




discussion of discretionary decisionmaking should not control the case at hand.

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