ARTHUR M. PARKS, Plaintiff/Appellant,
STATE OF OKLAHOMA ex rel., PARDON AND PAROLE BOARD, Defendant/Appellee.
Mandate Issued: 04/25/2018
FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BARBARA SWINTON, JUDGE
M. Parks, Lexington, Oklahoma, Pro Se.
Melissa L. Blanton, OKLAHOMA PARDON AND PAROLE BOARD,
Oklahoma City, Oklahoma, for Defendant/Appellee.
Mitchell, Presiding Judge
Plaintiff/Appellant Arthur M. Parks (Appellant) appeals from
an order dismissing his claim against Defendant/Appellee the
State of Oklahoma ex rel., Pardon and Parole Board
(the State) for failure to state a claim for which relief may
be granted and finding his claim subject to the registry of
frivolous and malicious appeals. After de novo
review, we find Appellant could prove no set of facts which
would entitle him to relief because the Pardons and Paroles
provisions, 57 O.S. 2011 §331 et seq., do not
require the Pardon and Parole Board to reconsider an inmate
for parole after his initial denial. We also affirm the
court's finding that Appellant's action is subject to
the registry of frivolous and malicious appeals.
Appellant, an inmate of the Oklahoma Department of
Corrections, was sentenced to life imprisonment on April 6,
1989. Appellant was denied parole in April 2015. The Pardon
and Parole Board (the Board) voted to set off Appellant's
next parole reconsideration for five years. Appellant filed a
lawsuit in Oklahoma County seeking a declaratory judgment
that the Administrative Code conflicts with statutory changes
concerning the scheduling of parole reconsideration.
Specifically, Appellant claimed the Board's discretion to
set off his next reconsideration date was nullified when the
Legislature repealed 57 O.S. 2011 §332.7 in 2013.
The trial court dismissed Appellant's case, finding that
Appellant was required to bring his suit under the Uniform
Post-Conviction Procedure Act in Stephens County, where
Appellant's judgment and sentence were imposed.
Appellant then filed an "Amended Petition" and
argued that the relief he was seeking, i.e.,
declaratory relief under the Administrative Procedures Act,
was not available under the Uniform Post-Conviction Procedure
Act. The State filed a motion to dismiss. The State argued
that Appellant had no liberty interest in parole and that the
Board's discretion to set off parole consideration was
not repealed by the Legislature. The State also
requested a finding that Appellant's action was
frivolous, malicious, failed to state a claim upon which
relief may be granted, and thus, was subject to the registry
of frivolous or malicious appeals pursuant to 57 O.S. 2011
§566.2. The court agreed with the State, dismissed the
case with prejudice, found that Appellant's action failed
to state a claim upon which relief may be granted, and found
it was subject to the registry for frivolous and malicious
"When reviewing a trial court's dismissal of an
action an appellate court examines the issues de
novo." Rogers v. Quiktrip Corp., 2010 OK
3, ¶4, 230 P.3d 853, 855-56 (footnote omitted).
"The purpose of a motion to dismiss is to test the law
that governs the claim in litigation rather than to examine
the underlying facts of that claim." Id. A
motion to dismiss should not be sustained unless it appears
without doubt that the plaintiff can prove no set of facts
that would entitle him to relief. Niemeyer v. U.S. Fid.
& Guar., 1990 OK 32, ¶5, 789 P.2d 1318, 1321.
We agree with the State that Appellant failed to state a
claim upon which relief may be granted. First, as noted by
the State, it is well-settled that a prisoner has no liberty
interest in parole. See Shabazz v. Keating, 1999 OK
26, ¶9, 977 P.2d 1089, 1093 ("In short, there is no
protectible liberty interest in an Oklahoma parole... this
State's parole release procedure, which affords no more
than an expectation (or hope) of parole, is not surrounded
with due process protection.") (footnotes and emphasis
omitted); see also Kelly v. Oklahoma Pardon and Parole
Bd., 1981 OK CR 143, ¶2, 637 P.2d 858, 858
("Neither the Oklahoma Constitution nor the United
States Constitution gives a prisoner any right to be
considered for parole.").
Second, the Pardons and Paroles provisions, 57 O.S. 2011
§331 et seq., do not, as urged by Appellant,
require the Board to reconsider an inmate for parole after
his initial denial. Title 57 O.S.Supp. 2013 §332.7 (D)
provides as follows:
D. Any inmate who has parole consideration dates calculated
pursuant to subsection A, B or C of this section shall be
considered at the earliest such date. Except as otherwise
directed by the Pardon and Parole Board, any person who has
been considered for parole and was denied parole or who has
waived consideration shall not be reconsidered for parole:
1. Within three (3) years of the denial or waiver, if the
person was convicted of a violent crime... unless the person
is within one (1) year of discharge; or
2. Until the person has served at least one-third (1/3) of
the sentence imposed, if the person was eligible for
consideration pursuant to paragraph 3 of subsection A of this
section. Thereafter the person shall not be considered more
frequently than once every three ...