Herman Tracy Clark v. Oklahoma Pardon

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
HERMAN TRACY CLARK,
Plaintiff - Appellant,
v.
OKLAHOMA PARDON AND PAROLE
BOARD; TOM BATES, Executive
Director; C. ALLEN MCCALL, J.D.
Member; LARRY MORRIS, Member;
KELLY DOYLE, Member; ROBERT
GILLILAND, J.D. Member; ADAM
LUCK, Member,
Defendants - Appellees.
No. 21-6079
(D.C. No. 5:20-CV-00981-C)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BALDOCK, and PHILLIPS, Circuit Judges.
_________________________________
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
January 14, 2022
Christopher M. Wolpert
Clerk of Court
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Herman Tracy Clark, an Oklahoma inmate proceeding pro se, appeals from the
district court’s dismissal of his 42 U.S.C. § 1983 action. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm. 1
BACKGROUND
In 1975, Clark pleaded nolo contendere in federal court to bank robbery under
18 U.S.C. § 2113(a), (d), and (e) and was sentenced to life imprisonment. That same
year, and in connection with the same underlying events, he was convicted in state
court of first-degree murder under Okla. Stat. Ann. tit. 21, § 701.1 and was sentenced
to death. The Oklahoma Court of Criminal Appeals affirmed Clark’s murder
conviction but modified his sentence to life imprisonment.
After serving twenty-five years in federal prison, Clark was transferred to state
custody. He was considered for parole by the Oklahoma Pardon and Parole Board
(PPB) in March 2015 and March 2018 but was denied both times. Effective
November 1, 2018, the Oklahoma legislature amended Okla. Stat. Ann. tit. 57,
§ 571(2), which lists violent offenses for which the PPB has the authority only to
recommend parole and not to grant it outright, see Okla. Const. art. VI, § 10.
Section 571(2)(i) specifies that “murder in the first degree” is a violent offense for
parole purposes. But the 2018 amendments added the phrase “as provided for in
1 Although Clark is under filing restrictions in this court, those restrictions do
not apply to this appeal because he is not “collaterally attacking [his] 1975 Oklahoma
murder conviction.” Clark v. Braggs, 782 F. App’x 741, 742 (10th Cir. 2019)
(internal quotation marks omitted).
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Section 701.7 of Title 21 of the Oklahoma Statutes” to § 571(2)(i). 2018 Okla. Sess.
Law Serv. ch. 117, § 4 (West). Clark’s statute of conviction – § 701.1 – was repealed
in 1976 and replaced with § 701.7. See Selsor v. Workman, 644 F.3d 984, 993
(10th Cir. 2011). Because of the change to § 571(2)(i), Clark asserted that his
conviction no longer qualified as a violent offense and that he, therefore, was eligible
to be granted parole outright by the PPB, see Okla. Const. art. VI, § 10, and to have
his parole reconsidered annually, see Okla. Admin. Code § 515:25-11-1(a). The PPB
allegedly concluded that Clark remained convicted of a violent offense and, thus, was
eligible only for parole recommendation, see Okla. Const. art. VI, § 10, and
reconsideration every three years, see Okla. Admin. Code § 515:25-11-1(b)(2). 2
In September 2020, Clark filed a § 1983 action, alleging that the PPB violated
his due process and equal protection rights under the Fourteenth Amendment by
refusing to treat his conviction as a nonviolent offense and reconsider him annually
in light of the 2018 amendments. A magistrate judge screened the complaint under
28 U.S.C. §§ 1915(e)(2)(B) and 1915A and recommended that the district court
dismiss the complaint under § 1915A(b)(1) for failure to state a claim upon which
relief may be granted. The magistrate judge found Clark’s due process claim
insufficient because: (1) “Oklahoma’s parole scheme is discretionary,” and he thus
2 Clark has attached to his brief correspondence with his parole investigator
concerning the effect of the 2018 amendments. But these documents were not
submitted to the district court, and we therefore do not consider them. See Utah v.
U.S. Dep’t of Interior, 535 F.3d 1184, 1195 n.7 (10th Cir. 2008) (“[N]ew evidence
not submitted to the district court is not properly part of the record on appeal.”).
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“has no constitutionally protected due process liberty interest in parole”; and
(2) without a due process interest in parole itself, the PPB’s “application of its
procedure does not violate his due process rights.” R. at 14 (internal quotation marks
omitted). The magistrate judge rejected Clark’s equal protection claim on the
grounds that: (1) the claim was “too conclusory” because he offered no supporting
“factual allegations []or legal authority” and did not “identify any similarly-situated
individual that ha[d] been given any different or more beneficial treatment”; and
(2) “prisoners are neither a suspect class nor do they have a fundamental right to
parole.” Id. at 14-15 (internal quotation marks omitted). In April 2021, the district
court adopted the magistrate judge’s report and recommendation and dismissed the
complaint. 3 Clark then filed a Federal Rule of Civil Procedure 59(e) motion to
amend the judgment, which the court denied. This appeal followed. 4
DISCUSSION
We review de novo the district court’s dismissal for failure to state a claim.
See McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). To survive dismissal,
3 The court initially adopted the report and recommendation based on the lack
of objections. But it later received Clark’s objections, which he had placed in the
prison legal mail system prior to his deadline. The court therefore struck its previous
order and entered a new order stating that it reviewed the matter de novo, considered
Clark’s objections, and found no error in the report and recommendation. Clark also
moved the court to set aside its original order on the ground that his objections were
timely. Having already done so, the court denied the motion as moot.
4 The defendants were not served in the district court and do not appear on
appeal, so we decide this matter solely on Clark’s brief, the supplement to his brief,
and the record on appeal.
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“a complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). In conducting our review, we accept
well-pleaded factual allegations as true, view them in the light most favorable to the
plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brooks v.
Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir.), cert. denied, 142 S. Ct. 477
(2021). We also liberally construe a pro se plaintiff’s complaint. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we “cannot
take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Id. (internal quotation marks omitted).
Clark challenges the district court’s conclusion that he failed to state a due
process claim. 5 To state such a claim, he must show “a constitutionally cognizable
liberty or property interest with which the state has interfered.” Steffey v. Orman,
461 F.3d 1218, 1221 (10th Cir. 2006). It is well-settled, however, that “the protected
interests are substantive rights, not rights to procedure.” Elliott v. Martinez, 675 F.3d
1241, 1245 (10th Cir. 2012). This is because “[p]rocess is not an end in itself,” but
serves only “to protect a substantive interest to which the individual has a legitimate
5 Clark also argues that the district court erred in rejecting his equal protection
claim and that the PPB violated his Eighth Amendments rights. These arguments are
too perfunctory to merit review. See United States v. Wooten, 377 F.3d 1134, 1145
(10th Cir. 2004). In any event, he raised neither his current equal-protection
arguments nor an Eighth Amendment claim in district court, and he has not argued
plain error on appeal, thus “mark[ing] the end of the road for” these claims. Richison
v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).
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claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). “Thus, an
entitlement to nothing but procedure cannot be the basis for a liberty or property
interest.” Elliott, 675 F.3d at 1245 (internal quotation marks omitted).
Clark does not claim a due process interest in parole itself. And settled
precedent makes clear he has no such interest because Oklahoma has a discretionary
parole system. See Shirley v. Chestnut, 603 F.2d 805, 806 (10th Cir. 1979)
(per curiam); Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla. 1999). See generally
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11 (1979) (noting
“[t]hat the state holds out the possibility of parole provides no more than a mere
hope” for liberty, which “is not protected by due process”).
Instead, Clark claims a due process interest in certain parole procedures,
particularly the timing of his consideration for parole. See R. at 7 (alleging he has a
“property and/or liberty interest right to an annual eligibility for consideration”). But
without a due process interest in parole itself, he has no due process interest in the
underlying procedures. 6 This includes the frequency of his consideration for parole.
See Koch v. Daniels, 296 F. App’x 621, 627-28 (10th Cir. 2008) (explaining that if an
inmate “has no constitutionally-protected liberty interest in parole . . . , he can have
no interest in how often he is considered for [it], or even whether he is considered for
6 We previously explained as much to Clark. See Clark v. Fallin,
654 F. App’x 385, 388-89 (10th Cir. 2016) (rejecting his due process challenge not
only to the denial of parole in 2015, but also to “the process by which” he was denied
parole, because he lacked any “liberty interest in parole protectable by due process
when [Oklahoma’s] parole system is discretionary”).
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[it] at all.”). 7 And even though the parole procedures are, at least according to Clark,
mandatory, he cannot show that the procedures, if followed, would result in his
release from custody so as to create a due process interest. See Elwell v. Byers,
699 F.3d 1208, 1214 (10th Cir. 2012) (“[W]hen state law creates a mandatory
procedure but does not guarantee a particular substantive outcome, it does not confer
a protected liberty interest.”); see also Teigen v. Renfrow, 511 F.3d 1072, 1081
(10th Cir. 2007) (“Although detailed and extensive procedural requirements may be
relevant as to whether a separate substantive property interest exists, the procedures
cannot themselves constitute the property interest.” (citation omitted)).
Accordingly, because Clark did not show a constitutionally protected liberty or
property interest, the district court properly concluded that he failed to state a due
process claim.
CONCLUSION
The district court’s judgment is affirmed. The district court’s dismissal counts
as a strike against Clark for purposes of § 1915(g), though we note that he already
7 We cite Koch solely for its persuasive value. See 10th Cir. R. 32.1(A).
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has accumulated at least three strikes. 8
Entered for the Court
Bobby R. Baldock
Circuit Judge
8 See Fallin, 654 F. App’x at 389 (affirming the dismissal of the complaint for
failure to state a claim and concluding that the appeal was frivolous, thus resulting in
two strikes); Clark v. Oakley, 560 F. App’x 804, 808-09 (10th Cir. 2014) (affirming
the dismissal of the complaint for failure to state a claim, resulting in one strike).
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