IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-30252 Summary Calendar
JOSEPH LOUIS STEVENSON,
Plaintiff-Appellant,
versus
LOUISIANA BOARD OF PAROLE; PEGGY LANDRY; VERA D. SCOTT; C.A. LOWE; FRED Y. CLARK; GRETCHEN MCCARSTLE; R.C. JAMES; JIM HERFORD,
Defendants-Appellees.
-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 00-CV-918 -------------------- July 11, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges:
PER CURIAM:*
Joseph Louis Stevenson, Louisiana state prisoner 94679,
argues that the district court abused its discretion in dismissing
as frivolous his 42 U.S.C. § 1983 complaint based on the absolute
immunity of the members of the Louisiana Parole Board (Board)
because he is not seeking monetary relief. Stevenson is correct
that absolute immunity does not extend to suits seeking injunctive
or declaratory relief under § 1983. Orellana v. Kyle, 65 F.3d 29,
33 (5th Cir. 1995). However, the dismissal of the complaint can be
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-30252 -2-
affirmed on alternative grounds because Stevenson has not alleged
an arguable constitutional violation. See Johnson v. McCotter, 803
F.2d 830, 834 (5th Cir. 1986); Thomas v. Torres, 717 F.2d 248, 248-
49 (5th Cir. 1983).
A prisoner’s in forma pauperis (IFP) complaint that lacks
an arguable basis in fact or law may be dismissed as frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i). Norton v. Dimazana, 122 F.3d
286, 291 (5th Cir. 1997). This court reviews a 28 U.S.C. § 1915
dismissal as frivolous for abuse of discretion. Id.
Stevenson argues that the Board denied him equal
protection by treating him differently than similarly situated
inmates without any rational basis for doing so. In order to
demonstrate an equal protection claim, a party must show “the
existence of purposeful discrimination motivating the state action
which caused the complained-of injury.” Johnson v. Rodriguez, 110
F.3d 299, 306 (5th Cir. 1997)(internal quotations and citations
omitted). In the absence of an allegation of discriminatory
motive, a mere claim of inconsistent outcomes in particular,
individual instances furnishes no basis for relief based on the
denial of equal protection. Thompson v. Patteson, 985 F.2d 202,
207 (5th Cir. 1993).
Stevenson has not asserted that he was treated
differently because of his race or some other classification.
Although he asserts that the other prisoners who were eligible
under La. Rev. Stat. Ann. § 15:574.4(a)(3) (West 1992) were
similarly situated to him, Stevenson has not demonstrated that
their criminal records and offenses were sufficiently similar to No. 01-30252 -3-
his circumstances. It is also obvious that the discretionary
decision to grant parole must be made on a case-by-case basis based
on the unique circumstances of each prisoner. Stevenson has failed
to allege an arguable equal protection claim and, thus, such claim
was subject to dismissal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
Stevenson argues that in enacting La. Rev. Stat. Ann.
§ 15:574.4(A)(3), the legislature created a liberty interest in the
expectation that the nature of his offenses and his past criminal
history would not be considered in considering his suitability for
parole release. He argues that the Board’s consideration of these
factors deprived him of due process during the parole proceedings.
This court indicated in Sinclair v. Ward, No. 99-30310
(5th Cir. 1999) (Dec. 27, 1999) that the Louisiana parole statutes
do not give rise to a constitutionally protected liberty interest
in parole release and, thus, that prisoners are not entitled to
challenge the procedures employed during their parole hearing under
the Due Process Clause.
The statute relied upon by Stevenson merely rendered
inmates, who have reached the age of forty-five and have served at
least twenty years of their thirty-or-more-year sentence, eligible
for parole consideration. This statute does not contain any
mandatory language requiring the Parole Board to release an inmate
if certain conditions are met and does not preclude consideration
of an inmate’s past criminal history or the nature of his offenses
of conviction. Further, La. Rev. Stat. Ann. § 15:574.2C(6)(a)(c)
(West Supp. 2001) remains in effect, and it provides that the Board No. 01-30252 -4-
is to consider all pertinent information with respect to each
prisoner in determining whether parole should be granted, including
the circumstances of his offense and his prior criminal record.
Stevenson’s due process claim has no arguable merit and was subject
to dismissal for frivolousness pursuant to § 1915(e)(2)(B)(i).
Stevenson argues that he has been and is being deprived
of parole release based on the retroactive application of statutes
and Board rules amending the parole statutes, which were passed
after the statutory amendment providing him with parole
eligibility. Stevenson argues that the amendment requires a
unanimous vote by the panel to obtain release on parole and that
under the prior provision, he would have been released on parole in
1998 based on a majority vote of his panel. Stevenson also
complains about the retroactive application of the new Board policy
extending the intervals between applications for parole rehearings
to two years.
A law violates the Ex Post Facto Clause if it increases
the punishment for a crime after its commission. See Creel v.
Kyle, 42 F.3d 955, 958 (5th Cir. 1995). Whether the application of
new procedural rules may “affect[] a prisoner’s ‘opportunity to
take advantage of provisions for early release’” is not the
relevant inquiry for ex post facto purposes; instead, the court
must determine whether the new rules “alter[] the definition of
criminal conduct or increase[] the penalty by which the crime is
punishable.” California Dep’t of Corrections v. Morales, 514 U.S.
499, 506 n.3 (1995). No. 01-30252 -5-
Stevens is mistaken with respect to the prior law
concerning the number of votes necessary to grant parole. A
historical review of the applicable statute reflects that Board
panels made up of three-member panels were always required to and
still must have a unanimous vote of three to grant a parole
release. See La. Rev. Stat.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-30252 Summary Calendar
JOSEPH LOUIS STEVENSON,
Plaintiff-Appellant,
versus
LOUISIANA BOARD OF PAROLE; PEGGY LANDRY; VERA D. SCOTT; C.A. LOWE; FRED Y. CLARK; GRETCHEN MCCARSTLE; R.C. JAMES; JIM HERFORD,
Defendants-Appellees.
-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 00-CV-918 -------------------- July 11, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges:
PER CURIAM:*
Joseph Louis Stevenson, Louisiana state prisoner 94679,
argues that the district court abused its discretion in dismissing
as frivolous his 42 U.S.C. § 1983 complaint based on the absolute
immunity of the members of the Louisiana Parole Board (Board)
because he is not seeking monetary relief. Stevenson is correct
that absolute immunity does not extend to suits seeking injunctive
or declaratory relief under § 1983. Orellana v. Kyle, 65 F.3d 29,
33 (5th Cir. 1995). However, the dismissal of the complaint can be
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-30252 -2-
affirmed on alternative grounds because Stevenson has not alleged
an arguable constitutional violation. See Johnson v. McCotter, 803
F.2d 830, 834 (5th Cir. 1986); Thomas v. Torres, 717 F.2d 248, 248-
49 (5th Cir. 1983).
A prisoner’s in forma pauperis (IFP) complaint that lacks
an arguable basis in fact or law may be dismissed as frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i). Norton v. Dimazana, 122 F.3d
286, 291 (5th Cir. 1997). This court reviews a 28 U.S.C. § 1915
dismissal as frivolous for abuse of discretion. Id.
Stevenson argues that the Board denied him equal
protection by treating him differently than similarly situated
inmates without any rational basis for doing so. In order to
demonstrate an equal protection claim, a party must show “the
existence of purposeful discrimination motivating the state action
which caused the complained-of injury.” Johnson v. Rodriguez, 110
F.3d 299, 306 (5th Cir. 1997)(internal quotations and citations
omitted). In the absence of an allegation of discriminatory
motive, a mere claim of inconsistent outcomes in particular,
individual instances furnishes no basis for relief based on the
denial of equal protection. Thompson v. Patteson, 985 F.2d 202,
207 (5th Cir. 1993).
Stevenson has not asserted that he was treated
differently because of his race or some other classification.
Although he asserts that the other prisoners who were eligible
under La. Rev. Stat. Ann. § 15:574.4(a)(3) (West 1992) were
similarly situated to him, Stevenson has not demonstrated that
their criminal records and offenses were sufficiently similar to No. 01-30252 -3-
his circumstances. It is also obvious that the discretionary
decision to grant parole must be made on a case-by-case basis based
on the unique circumstances of each prisoner. Stevenson has failed
to allege an arguable equal protection claim and, thus, such claim
was subject to dismissal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
Stevenson argues that in enacting La. Rev. Stat. Ann.
§ 15:574.4(A)(3), the legislature created a liberty interest in the
expectation that the nature of his offenses and his past criminal
history would not be considered in considering his suitability for
parole release. He argues that the Board’s consideration of these
factors deprived him of due process during the parole proceedings.
This court indicated in Sinclair v. Ward, No. 99-30310
(5th Cir. 1999) (Dec. 27, 1999) that the Louisiana parole statutes
do not give rise to a constitutionally protected liberty interest
in parole release and, thus, that prisoners are not entitled to
challenge the procedures employed during their parole hearing under
the Due Process Clause.
The statute relied upon by Stevenson merely rendered
inmates, who have reached the age of forty-five and have served at
least twenty years of their thirty-or-more-year sentence, eligible
for parole consideration. This statute does not contain any
mandatory language requiring the Parole Board to release an inmate
if certain conditions are met and does not preclude consideration
of an inmate’s past criminal history or the nature of his offenses
of conviction. Further, La. Rev. Stat. Ann. § 15:574.2C(6)(a)(c)
(West Supp. 2001) remains in effect, and it provides that the Board No. 01-30252 -4-
is to consider all pertinent information with respect to each
prisoner in determining whether parole should be granted, including
the circumstances of his offense and his prior criminal record.
Stevenson’s due process claim has no arguable merit and was subject
to dismissal for frivolousness pursuant to § 1915(e)(2)(B)(i).
Stevenson argues that he has been and is being deprived
of parole release based on the retroactive application of statutes
and Board rules amending the parole statutes, which were passed
after the statutory amendment providing him with parole
eligibility. Stevenson argues that the amendment requires a
unanimous vote by the panel to obtain release on parole and that
under the prior provision, he would have been released on parole in
1998 based on a majority vote of his panel. Stevenson also
complains about the retroactive application of the new Board policy
extending the intervals between applications for parole rehearings
to two years.
A law violates the Ex Post Facto Clause if it increases
the punishment for a crime after its commission. See Creel v.
Kyle, 42 F.3d 955, 958 (5th Cir. 1995). Whether the application of
new procedural rules may “affect[] a prisoner’s ‘opportunity to
take advantage of provisions for early release’” is not the
relevant inquiry for ex post facto purposes; instead, the court
must determine whether the new rules “alter[] the definition of
criminal conduct or increase[] the penalty by which the crime is
punishable.” California Dep’t of Corrections v. Morales, 514 U.S.
499, 506 n.3 (1995). No. 01-30252 -5-
Stevens is mistaken with respect to the prior law
concerning the number of votes necessary to grant parole. A
historical review of the applicable statute reflects that Board
panels made up of three-member panels were always required to and
still must have a unanimous vote of three to grant a parole
release. See La. Rev. Stat. Ann. § 15:574.2 (West 1992) (West
Supp. 2001). Stevenson was denied parole by a three-member panel
and, thus, the amendment affecting panels with more than three
members did not substantially disadvantage Stevenson as he claims.
The mere possibility that Stevenson may appear before a
future parole panel having more than three members and that he may
be precluded from obtaining parole release because of the lack of
a unanimous vote by that panel is highly speculative and too
attenuated to support a claim of an ex post facto violation. See
Garner v. Jones, 529 U.S. 244, 120 S. Ct. 1362, 1368 (2000).
La. Rev. Stat. Ann. § 15:574.4C (West 1992), which was
enacted in 1968, provided and continues to provide for parole
reviews by the Board “[a]t such intervals as it determines.” This
statute was in effect at the time of Stevenson’s conviction and
when he subsequently became eligible for parole. Thus, the Board’s
policy change in 1998 with respect to the intervals between
applications for rehearing did not change the law in effect at the
time that Stevenson was convicted in 1978. See Allison v. Kyle, 66
F.3d 71, 74 (5th Cir. 1995). Stevenson has failed to allege an
arguable ex post facto violation and, thus, this claim was also
subject to dismissal based on its frivolousness. No. 01-30252 -6-
The district court abused its discretion in dismissing
Stevenson’s complaint based on absolute immunity. However, the
dismissal of the complaint as frivolous is AFFIRMED on the
alternative ground that Stevenson failed to raise a constitutional
claim of arguable merit under 28 U.S.C.
§ 1915(e)(2)(B)(i). See Johnson, 803 F.2d at 834.
AFFIRMED.