David Timothy Moore v. Georgia Board of Pardons & Paroles

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 24, 2024
• Docket: 23-12468
• Status: Unpublished

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-12468 Non-Argument Calendar ____________________

DAVID TIMOTHY MOORE, Plaintiff-Appellant, versus GEORGIA BOARD OF PARDONS & PAROLES, CHAIRMAN, STATE BOARD OF PARDONS AND PAROLES, VICE CHAIRMAN, STATE BOARD OF PARDONS AND PAROLES, JACQUELINE BUNN, Esq., Member, DAVID HERRING, et al. Member, USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 2 of 19

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Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:23-cv-01109-AT ____________________

Before JORDAN, BRASHER, and ABUDU, Circuit Judges. PER CURIAM: David Timothy Moore, proceeding pro se, appeals the dis- trict court’s dismissal of his 42 U.S.C. § 1983 claim for failure to state a claim pursuant to 28 U.S.C. § 1915A. Mr. Moore alleged in his complaint that Graham v. Florida, 560 U.S. 48 (2010), entitles him to “a meaningful and realistic opportunity to obtain release on pa- role based on demonstrated maturity and rehabilitation” as a juve- nile offender, and argues that this claim is plausible. Because Mr. Moore’s complaint states a plausible claim for relief, we vacate and remand. I*

* All the stated facts are taken from Mr. Moore’s complaint because, at the motion to dismiss stage, we are required to “accept the allegations in the com- plaint as true and construe them in the light most favorable to the plaintiff.” Chua v. Ekonomou, 1 F.4th 948, 952 (11th Cir. 2021). USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 3 of 19

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In 1987, when Mr. Moore was 17 years old, a Georgia jury convicted him of armed robbery, aggravated assault, aggravated battery, and aggravated assault with intent to rob. He was sen- tenced to life imprisonment for the armed robbery count plus 20 years for each of the additional three counts. In May of 1988, the Georgia Board of Pardons and Paroles notified Mr. Moore that he would be considered for parole in 1994. In May of 1989, Mr. Moore was involved in an “inmate disturbance,” during which Mr. Moore alleges twenty inmates “unprovokingly attacked” three inmates. Mr. Moore stabbed one of the attacking inmates and subsequently pled guilty to manslaughter in October of 1989 after being indicted for murder. Mr. Moore was sentenced to fifteen consecutive years for the manslaughter conviction. There was no change to Mr. Moore’s upcoming parole consideration for May of 1994. In June of 1994, following the May parole consideration, the Board denied parole based “on the circumstances and nature of the offense and multiple offenses.” In May of 2002, Mr. Moore was again denied parole based “on the circumstances and the nature of the offense.” In May of 2010, Mr. Moore was denied parole a third time due to the “severe nature of the offense.” In March of 2014, Mr. Moore was denied parole for a fourth time because of the “se- vere nature of the offense.” In April of 2018, the Board based Mr. Moore’s fifth denial of parole on “insufficient time served to date given the nature and circumstances of [his] offenses.” Most re- cently, in February of 2021, Mr. Moore was denied parole a sixth time, again because of “insufficient amount of time served to date given the nature and circumstances of [his] offense.” Both the USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 4 of 19

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penultimate and ultimate denials noted that Mr. Moore was “en- couraged to continue in [his] rehabilitative efforts so [he] will be properly prepared in the event a future consideration results in [ ] transition back into society.” Neither denial, however, provided any specifics about what rehabilitative steps Mr. Moore must take to have a meaningful chance at parole. II The sixth denial of parole prompted Mr. Moore’s complaint in this case, which he filed in March of 2023. In his complaint, Mr. Moore alleged a claim under 42 U.S.C. § 1983 against the Board and its members in their individual and official capacities. Mr. Moore cited to O.C.G.A. §§ 42-9-40(a), 42-9-42(c) to show that Georgia law requires guidelines for determining parole action, “except [for] those serving life sentences.” This lack of guidelines, Mr. Moore asserts, violates his constitutional rights under the Eighth Amend- ment because juvenile offenders sentenced to life with the possibil- ity of parole deserve a chance to show they have matured. Specifi- cally, he contends there should be “criteria, standard(s), proce- dures(s) and/or guideline(s)” that make a distinction between ju- venile and adult offenders sentenced to life imprisonment, and which “afford [ ] a meaningful and realistic opportunity to obtain release based on demonstrated maturity and rehabilitation.” 1

1 Mr. Moore also argues that the district court erred in considering facts out-

side the four corners of his complaint. Because we vacate and remand on other grounds, we do not reach this issue. USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 5 of 19

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Under 28 U.S.C. § 1915A, a court reviews a complaint in a civil action in which a prisoner seeks redress from an officer or em- ployee of a governmental entity as soon as practicable. Pursuant to § 1915A, a magistrate judge issued a report and recommendation (“R&R”) recommending that Mr. Moore’s complaint be dismissed for failure to state a claim. The R&R concluded that the Board was entitled to sover- eign immunity, but that Mr. Moore could bring claims for declara- tive and injunctive relief against the Board’s members. Regarding the merits, the R&R determined Mr. Moore failed to state an Eighth Amendment claim because the Board’s decision was “merely a disappointment,” rather than a decision that constituted cruel and unusual punishment. See Slakman v. Buckner, 434 F. App’x 872, 875 (11th Cir. 2011) (per curiam). Further, the R&R deter- mined that Graham, 560 U.S. at 75, does not apply to juvenile of- fenders who were sentenced to life with the possibility of parole and who, as adults, were also sentenced for voluntary manslaugh- ter. Additionally, the R&R explained Mr. Moore could not state a procedural due process claim because he had no liberty interest nor any constitutional right to parole, and the Board’s decision to deny Mr. Moore parole did not violate his substantive due process rights because the Board is allowed to deny parole based on the nature and circumstances of the offense. Finally, the R&R concluded that Mr. Moore failed to state an equal protection claim. He had not alleged sufficient information to show that those who did receive parole were similarly situated because he did not provide USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 6 of 19

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information regarding their criminal history, disciplinary record, or background. Mr. Moore filed objections to the R&R, arguing that Graham affords juvenile non-homicide offenders sentenced to life with the possibility of parole more process and requires parole proceedings to distinguish between juvenile and adult offenders. Mr. Moore made the crux of his claim clear when he posed the following ques- tion in his objections: “Have the Defendants created a system or procedure within their parole process that complies with the Su- preme Court’s directive and holding that states must provide juve- nile non-homicide offenders who are sentenced to life (not life- without-parole) some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation?” After receiving Mr. Moore’s objections, the district court adopted the R&R, noting that Graham did not say anything about the considerations the Board must make when determining whether to grant parole. It concluded that Graham stood only for the proposition that “the Eighth Amendment prohibits a life-with- out-parole sentence for a juvenile offender who did not commit homicide.” In determining that Mr. Moore “clearly has a ‘meaningful’ shot” at parole, the district court referred to the appellate decision relating to Mr. Moore’s initial conviction. Both because the Board had considered Mr. Moore for parole six times and because Mr. Moore’s original crimes were “extremely violent and chilling,” the district court reasoned “there [wa]s nothing at all shocking or USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 7 of 19

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outrageous” about the denials. Accordingly, Mr. Moore’s “argu- ment that he is somehow entitled to relief under Graham [wa]s simply wrong.” Finally, the district court ruled that Mr. Moore’s equal protection claim failed because Moore cannot credibly allege that there was not a rational basis for the board to deny him pa- role. 2 III We review de novo a district court’s dismissal of a complaint for failure to state a claim, “accept[ing] the allegations in the com- plaint as true and constru[ing] them in the light most favorable to the plaintiff.” Chua, 1 F.4th at 952. Though pro se pleadings must provide a factual basis for a claim, they are construed liberally and held to less stringent standards than those drafted by attorneys. See Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1107 (11th Cir. 2015). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege (1) a violation of a right secured by the Constitution or laws of the United States, and (2) that the deprivation was commit- ted or caused by a person acting under the color of state law. See Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). To prevent dismissal for failure to state a claim, a plaintiff must allege sufficient facts to state a claim for relief that is “plausi- ble on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint must contain more than “labels and conclusions, and

2 Because Mr. Moore disclaims any equal protection claim in his appeal, we do not address this part of the district court’s opinion. USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 8 of 19

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a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (quotation marks omitted). A plausible claim allows a court to reasonably infer that the defendant is liable for the claims. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint, of course, must allege more than a “sheer pos- sibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. But the “plausibility standard is not akin to a ‘probability re- quirement.’” Iqbal, 556 U.S. at 678. Mr. Moore alleges a violation of his constitutional rights based on a theory that appears to be an issue of first impression in our circuit. A district court “should be especially reluctant to dis- miss on the basis of the pleadings when the asserted theory of lia- bility is novel or even ‘extreme.’” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (4th ed. 2024). See also Shull v. Pilot Life Ins. Co., 313 F.2d 445, 447 (5th Cir. 1963) (“It is perhaps ironic that the more extreme or even far-fetched is the as- serted theory of liability, the more important it is that the concep- tual legal theories be explored and assayed in the light of actual facts, not a pleader’s supposition.”). Significantly, there is emerging disagreement among district and circuit courts about what impact, if any, Graham has on the rights of life-sentenced juvenile offenders with respect to parole. Some district courts have concluded that there is a plausible claim that Graham affords juvenile offenders additional parole USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 9 of 19

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protections under the Eighth and Fourteenth Amendments, while others have definitively held that such offenders have definitive constitutional guarantees post-Graham. See, e.g., Greiman v. Hodges, 79 F. Supp. 3d 933, 944 (S.D. Iowa 2015) (holding that “[c]onsider- ing the current procedural posture of the case, the Court agrees with Plaintiff that he has presented at least a plausible § 1983 claim”); Swatzell v. Tenn. Bd. of Parole, No. 3:18-CV-01336, 2019 WL 1533445, at *6 (M.D. Tenn. Apr. 9, 2019) (granting the plaintiff a right to amend because, “[b]ased on this line of cases, [he] may be able to state a similar Eighth Amendment claim”). See also Hayden v. Keller, 134 F. Supp. 3d 1000, 1010 (E.D.N.C. 2015) (“The court finds that the North Carolina parole process violates the Eighth Amendment as outlined in Graham.”); Flores v. Stanford, No. 18 CV 2468 (VB), 2019 WL 4572703, at *9 (S.D.N.Y. Sept. 20, 2019) (hold- ing that “Graham, Miller, and Montgomery vest in juvenile offenders sentenced to a maximum term of life imprisonment an Eighth Amendment right that attaches to those offenders’ parole proceed- ings”). But two circuits, to an extent, have disagreed. See Brown v. Precythe, 46 F.4th 879, 886 (8th Cir. 2022) (declining to go so far as to “scrutinize in a civil rights action whether a State’s parole proce- dures afford ‘some meaningful opportunity’ for release of a juve- nile homicide offender,” but finding that the relevant parole system was in any event not violative); Bowling v. Dir., Va. Dep’t of Corr., 920 F.3d 192, 199 (4th Cir. 2019) (determining that “the Supreme Court’s reflection on the relief provided by Miller and its lineage persuades us that the Eighth Amendment promises juvenile of- fenders no further protections than those that Appellant has USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 10 of 19

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already received”). That some courts agree with Mr. Moore, while others do not, renders his claim at this stage—at the very least— plausible. Though we reach no ultimate conclusions as to the merits of Mr. Moore’s claim, we find it helpful to lay out the basis for the claim. In Graham, the Supreme Court held that “the Eighth Amend- ment prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender.” 560 U.S. at 75. Though the Eighth Amendment “does not require the State to release that of- fender during his natural life,” it does require states to give such juvenile defendants “some meaningful opportunity to obtain re- lease based on demonstrated maturity and rehabilitation.” Id. Does Graham require any meaningful opportunity to demonstrate maturity in the parole setting for juvenile offenders? There are two possible constitutional rights that could require an affirmative answer to this question. Each is premised on the same “meaningful opportunity” language provided in Graham, though they manifest differently. First, the procedural component of the Eighth Amend- ment’s prohibition on cruel and unusual punishment could be vio- lated if juvenile offenders never have a meaningful opportunity to demonstrate maturity as dictated by Graham. One district court ex- plained it this way: “If a juvenile offender’s life sentence, while os- tensibly labeled as one ‘with parole,’ is the functional equivalent of a life sentence without parole, then the State has denied that of- fender the ‘meaningful opportunity to obtain release based on USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 11 of 19

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demonstrated maturity and rehabilitation’ that the Eighth Amend- ment demands.” Hayden, 134 F. Supp. at 1009. But see Brown, 46 F.4th at 886 (declining to find such a constitutional command, but holding that the system in question satisfied it regardless). Second, and relatedly, the meaningful opportunity decree from Graham could mandate additional process due only to juve- nile offenders. There is no substantive constitutional right to pa- role. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a con- victed person to be conditionally released before the expiration of a valid sentence.”). And Georgia’s parole system does not create a legitimate expectation of parole such that there is a liberty interest in parole that is subject to due process protections. See Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001). In the parole context, however, Graham might require a de- lineated parole process, a distinction between how adult and juve- nile offenders are evaluated for parole, or a requirement that the age of an offender at the time of conviction be considered in parole proceedings. As one district court explained, regarding a similar case at the pleadings stage: [A]lthough Graham stops short of guaranteeing pa- role, it does provide the juvenile offender with sub- stantially more than a possibility of parole or a ‘mere hope’ of parole; it creates a categorical entitlement to ‘demonstrate maturity and reform,’ to show that ‘he is fit to rejoin society,’ and to have a ‘meaningful op- portunity for release.’ USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 12 of 19

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Greiman, 79 F. Supp. 3d at 945 (citing Graham, 560 U.S. at 79). But see Bowling, 920 F.3d at 199 (concluding that the juvenile offender was afforded no protections than already received). Here, as in Greiman, we do not read Mr. Moore’s complaint to claim mere disappointment with the denial of parole, but rather construe the complaint to allege a more fundamental concern with the procedural dearth in Georgia’s parole system. As noted, Geor- gia creates an exception to its requirement of parole guidelines for those sentenced to life, see O.C.G.A. §§ 42-9-40(a), 42-9-42(c), and Mr. Moore’s own history of parole denials suggests nominal expla- nations purportedly without any meaningful path for rehabilita- tion. Again, we pass no judgment on the merits of Mr. Moore’s claim—and need not do so—because “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556. Mr. Moore may have an uphill battle, especially given his manslaughter conviction as an adult, but at this stage we assess only plausibility—not probability. And, here, it is plausible that additional process is due to provide Mr. Moore “some meaningful opportunity to obtain release based on demon- strated maturity and rehabilitation.” Graham, 560 U.S. at 75. Because federal courts are divided on what additional pro- cess Graham affords juvenile offenders like Mr. Moore, he has plau- sibly stated a claim for relief in his complaint. V USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 13 of 19

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Mr. Moore’s complaint plausibly alleges a violation of his constitutional rights under 42 U.S.C. § 1983. We therefore vacate and remand for further proceedings consistent with our opinion. VACATED AND REMANDED. USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 14 of 19

23-12468 BRASHER, J., Dissenting 1

BRASHER, Circuit Judge, dissenting: After committing armed robbery and aggravated assault and battery as a juvenile, David Moore was sentenced to life in prison with the possibility of parole. He then committed manslaughter in prison. He brings a Section 1983 claim against the Georgia Parole Board for denying him parole in alleged violation of his Eighth Amendment rights under Graham v. Florida, 560 U.S. 48 (2010). The district court dismissed the claim, but the majority reverses. I be- lieve the majority is mistaken. The language of Graham limits its holding to those persons sentenced to life without the possibility of parole. Because Moore was sentenced to life with the possibility of parole, his claim under Graham fails as a matter of law. Because I believe the district court should be affirmed, I must respectfully dis- sent. I.

Only a few facts are relevant here. Moore was convicted as a juvenile for armed robbery and assault and battery. He was sen- tenced to life in prison with the possibility of parole. He later com- mitted manslaughter in prison. Moore has been considered for parole eligibility and denied six times. Eventually, he filed this pro se Section 1983 lawsuit against the Georgia Parole Board for violating his Eighth Amend- ment rights under Graham by denying him parole. The Georgia Pa- role Board has not been especially fulsome in its reasoning for denying Moore parole. But Moore does not identify any policy or procedure that makes the Georgia parole process unusual in USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 15 of 19

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general or as applied to him. On this complaint, the problem Moore identifies is simply that he has been considered for parole and denied without a satisfactory explanation. As part of pre-service screening under the Prison Litigation Reform Act, the district court dismissed Moore’s lawsuit for failure to state a claim. This appeal followed. II.

The Prison Litigation Reform Act requires that a district court review “as soon as practicable” the complaint in a “civil ac- tion in which a prisoner seeks redress from a government entity” and “dismiss the complaint” if it “fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(a)&(b)(1). District courts have a duty to dismiss implausible claims “without regard to whether [the claim] is based on an outlandish legal theory or on a close but ultimately unavailing one.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Moore grounds his Section 1983 claim in a violation of the Eighth Amendment. To plausibly state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege (1) a violation of a right se- cured by the Constitution or laws of the United States, and (2) that the deprivation was committed or caused by a person acting under the color of state law.” Majority Op. at 7–8 (citing Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001)). The Eighth Amendment forbids the federal government from inflicting cruel and unusual punishments. U.S. Const. amend. VIII. It was USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 16 of 19

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incorporated against the states under the Fourteenth Amend- ment’s Due Process Clause. Robinson v. California, 370 U.S. 660 (1962). In Graham, the Supreme Court held that sentencing a juve- nile who did not commit murder to life without parole violates the Eighth Amendment. 560 U.S. at 82. On its own terms, Graham “concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” 560 U.S. at 63. The Su- preme Court later extended Graham to sentencing schemes which mandate life without parole for juveniles who murdered as well, though it did not forbid courts from imposing such a sentence at their discretion. See Miller v. Alabama, 567 U.S. 460, 489 (2012). In my view, the language of Graham establishes that the dis- trict court correctly dismissed this claim. The Graham Court did not consider the appropriateness of “a particular defendant’s sentence” but rather “a sentencing practice itself”—sentencing nonhomicidal juveniles to life without parole. 560 U.S. at 61. It took a “categorical approach” to that sentencing practice, declaring it unconstitu- tional. Id. at 62. As part of its justification for reaching that conclu- sion, the Court explained that a state must provide a juvenile with a “meaningful opportunity to obtain release.” Id. at 75. And to ac- complish that result, the Court took the sentence of life without parole off the table for nonhomicide juvenile offenders. The majority says that “i t i s p l a u s i b l e t h a t a d - ditional process is due to provide Mr. Moore ‘some meaningful opportunity to obtain release based on USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 17 of 19

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demonstrated maturity and rehabilitation.” Maj. Op. at 13. No, it isn’t. In eliminating the sentence of life without parole, the Court did not hold—or even contemplate—that the Eighth Amendment would require that any person be granted parole or that a state pa- role board follow any particular process. In fact, the Court ex- pressly contemplated that some people, such as Moore, will remain in prison for their natural lives. The Court held that the “Eighth Amendment does not foreclose the possibility that persons con- victed of nonhomicide crimes committed before adulthood will re- main behind bars for life.” Id. The Court explained that the Eighth Amendment merely “prohibit[s] States from making the judgment at the outset that those offenders never will be fit to reenter society.” Id. (emphasis added). The Supreme Court has never extended Graham to inmates sentenced to life with the possibility of parole. Neither have we. And such a holding would contravene Graham’s clear directive that it “concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” 560 U.S. at 63. Our sister circuits have likewise refused to extend the rule in Graham to in- mates sentenced to life or terms of years with the possibility of pa- role. See Brown v. Precythe, 46 F.4th 879, 886 (8th Cir. 2022) (en banc); see also Bowling v. Dir., Virginia Dep’t of Corr., 920 F.3d 192, 198 (4th Cir. 2019); United States v. Sparks, 941 F.3d 748, 754 (5th Cir. 2019); cf. Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012) (re- fusing to extend Graham “beyond its plain language” to consecu- tive, fixed term sentences which are the “functional equivalent of life without parole”). USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 18 of 19

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Despite reversing the district court for dismissing Moore’s complaint, the majority does not now purport to extend Graham to those sentenced to life with the possibility of parole. See Majority Op. at 9–10. Instead, the majority opinion says that some district courts are divided on Graham’s applicability to those sentenced to life with the possibility of parole and, on that basis, concludes that this claim deserves to pass through Prison Litigation Reform Act screening. See id. For my part, I don’t think the existence of a disa- greement among district courts is a sufficient basis to reverse a dis- trict court. But, more importantly, this disposition seems limited to the facts here—where a district court has dismissed a pro se com- plaint without requiring a response from the defendants and at least some judges believe the claim deserves encouragement through Prison Litigation Reform Act screening. If this issue were appealed with briefing by both sides, we could give this legal ques- tion a more fulsome appellate treatment and, I suspect, reach a dif- ferent result. In any event, I agree with the district court that Moore’s sen- tence is consistent with the Eighth Amendment. Moore was sen- tenced to life with the possibility of parole, not life without parole. And he has been in the past, and continues to be, eligible for parole. Certainly, he has been denied parole. But the Eighth Amendment does not guarantee him parole or a particular process to assess pa- role. USCA11 Case: 23-12468 Document: 8-1 Date Filed: 04/24/2024 Page: 19 of 19

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III.

Because Moore has failed to state a plausible claim for relief, I think we are required to affirm. So I must respectfully dissent.