1 The Honorable David S. Doty, United Stat es District Judge for the District of Minnesota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1366

___________ Roger R. Nolan, *
* Appellant, *
* v. * Appeal from the United States * District Court for the Dana D. Thompson; Fannie Gaw; * Western District of Missouri. Wayne Crump; Ansel P. Card; * Robert Robinson; Penny Hubbard; * Jane/John Does, All members of * Probation and Parole for the State of * Missouri Department of Corrections; * Reid Forrester, *
* Appellees. *

___________ Submitted: November 15, 2007 Filed: March 10, 2008

___________ Before WOLLMAN and BENTON, Circuit Judges, and DOTY, 1 District Judge.

___________ WOLLMAN, Circuit Judge. Roger Nolan, a Missouri inmate servi ng a parolable life sentence for firstdegree murder perpetrated during the co mmission of a kidnapping, brought an action2 The Honorable Scott O. Wright, United St ates District Judge for the Western District of Missouri. -2- against the defendant members of the Missouri Board of Probation and Parole (Board), requesting declaratory and injunctive relief under 42 U.S.C. § 1983 and alleging violations of the ex post facto cl ause, the due process clause, and the equal protection clause of the federal Constitution. He appeals from the district court’s 2 judgment denying his motion for summary judgment, granting summary judgment to the Board, and dismissing the action. We affirm.

I. Background

Based upon an incident that occurred on November 27, 1981, Nolan pled guilty on March 4, 1983, to a single count of fi rst degree murder perpetrated during the commission of a kidnapping and was senten ced to life imprisonment with the possibility of parole.

The governing parole statute on the date of Nolan’s offense was Mo. Rev. Stat. § 549.261 (1978). The Missouri parole re gulations promulgated under § 549.261 and in effect when Nolan committed his offe nse provided the Board with the following options in the event of an adverse decision at an inmate’s parole eligibility hearing: a denial of further parole consideration; a set-back or continuance of up to five years; or a request for further information or pl anning. Mo. Code Regs. Ann. tit. 13, § 80- 2.020(2)(A)-(E) (1980). In 1982, the Missouri legislature repealed Mo. Rev. Stat. § 549.261 and enacted Mo. Rev. Stat. § 217.690 in its stead. In 1992, the Missouri legislature revised § 217.690 to state that “[a]ny offender under a sentence for first degree murder who has been denied release on parole after a parole hearing shall not be eligible for another parole hearing until at least three years from the month of the parole denial.” Mo. Rev. Stat. § 217.690(5) (1992).3 The Honorable William A. Knox, United States Magistrate Judge for the Western District of Missouri. -3- Nolan’s first parole hearing was schedul ed for 1983. He declined a hearing at that time, but requested a continuance until August 1985. The Board denied him parole in 1985 and scheduled him for an interim review in 1987. Nolan requested two year-long continuances of his 1987 hearing date and had his second hearing in September 1989. Following the Board’s a dverse decision in 1989, Nolan received reconsideration hearings every two year s from 1991 to 2003. The Board consistently stated that the reason for denying Nolan parole was that it would “depreciate the seriousness” of his offense due to the ci rcumstances surrounding it. Nolan appealed the Board’s decisions in 1993, 1999, and 2001. The Board’s adverse decision in 2003 scheduled Nolan’s reconsideration hearing for September 2006 and indicated that the decision was not subject to appeal. The circumstances surrounding Nolan’s 2006 hearing are not part of the record on appeal.

Following the filing of Nolan’s action, th e district court referred the case to a magistrate judge 3 pursuant to 28 U.S.C. § 636(b). The Board moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(b)(6). After responding to the Board’s motion, and prior to the magistrate judge’s recommendation thereon, Nolan moved for summary judgment. Following the magistrate judge’s recommendation that the Board’s motion be deni ed because of the need to consider matters outside the pleadings, the Board also moved for summary judgment. The district court thereafter adopted the magistrate judge’s recommendation that the Board’s motion for summary judgment be granted and that Nolan’s moti on be denied and his claims dismissed.

II. Procedural Issues

As a threshold issue, Nolan contends th at the district court improperly granted summary judgment because of the inadequateopportunity afforded him for discovery. We review for abuse of discretion the districtcourt’s determination that a claim is ripe-4- for summary judgment. Robinson v. Terex Corp. , 439 F.3d 465, 467 (8th Cir. 2006) (citing In re TMJ Implants Prod. Liab. Litig. , 113 F.3d 1484, 1489 (8th Cir. 1997)). Although the nonmovant must be affordedsufficient time for discovery, id. , discovery need not be complete for a district court to grant summary judgment. Fed. R. Civ. P. 56(c).

In the absence of a Rule 56(f) moti on for a continuance accompanied by an affidavit showing what specific facts furthe r discovery might uncove r, a district court generally does not abuse its discretion in granting summary judgment on the basis of the record before it. In re TMJ Implants Prod. Liab. Litig. , 113 F.3d at 1490; see also, e.g. , Robinson , 439 F.3d at 467; Dulany v. Carnahan , 132 F.3d 1234, 1238 (8th Cir. 1997). Nolan contends that the Board faile d to provide him with sufficient responses to his discovery requests. The discove ry period agreed upon by the parties and adopted by the magistrate judge ended March 20, 2006. Nolan filed for summary judgment on April 17, 2006, the Board f iled for summary judgment on May 22, 2006, and the magistrate judge issued his report and recommendations with respect to the motions on November 9, 2006. At no time during this time period or otherwise did Nolan file a Rule 56(f) motion to delay ruling on the motions for summary judgment; nor did he file a Rule 36( a) motion asking that the district court determine the sufficiency of the Board’s responses to hi s requests for admissions; nor did he file a Rule 37(a) motion to compel the disclosures or documents he needed. In the absence of any motions of this nature, we cannot say that the district court abused its discretion in granting summary judgment based on the record before it.

We conclude that Nolan’s remaining ar guments concerning the district court’s procedures lack merit, and we now turn to the substantive issues.4 Nolan also claims that Missouri’s new parole laws eliminate an opportunity for accelerated reconsideration in the event of significant developments or changes in an inmate’s status. Since the parole laws in effect at the time of Nolan’s offense did not provide for such an opportunity, we do not consider this argument further. -5- III. Constitutional Issues

We review a district court’s gran t or denial of summary judgment de novo , applying the same standard as the district court. Mayorga v. Mo. , 442 F.3d 1128, 1131 (8th Cir. 2006). Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and the m oving party is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P. 56(c)).

A. Ex Post Facto Claims

Nolan contends that the Board’s appli cation of Missouri’s changed parole laws to him violated, and violates, the ex post facto clause of the federal Constitution. Specifically, he argues that the Board’s sche duling of his reconsideration hearings at three-year intervals pursuant to section 217. 690 of the Missouri Code, instead of at the two-year intervals he was afforded prior to the statute’s revision, creates a risk of increasing the length of his incarceration. 4

Taking the facts in the light most favorableto Nolan, we assume that the Board has applied, and is applying, Missouri’s current parole statute to him. The retroactive application of changed parole laws may viol ate the ex post facto cl ause if it creates “a sufficient risk of increasing the measure of punishment” for Nolan’s offense from what it was at the time he committed it. Garner v. Jones , 529 U.S. 244, 250 (2000) (quoting Cal. Dep’t of Corr. v. Morales , 514 U.S. 499, 509 (1995) (internal quotation omitted)). Accordingly, we must compare Missouri’s current parole laws with those that were in effect at the time of Nolan’ s offense, keeping in mind that not every-6- retroactive procedural change that could affect an inmate’s term of confinement creates a risk of constitutional proportions. “[T]he question is a matter of degree” and must be considered within the contex t of the entire parole system. Id. at 250, 252 (internal quotation omitted). If the new law does not show a sufficient risk on its face, Nolan must “demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discre tion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” Id. at 255.

As set forth above, the Missouri parole laws in effect on November 27, 1981, provided the Board with the following options in the event of an adverse decision at an inmate’s parole hearing: a denial of further parole consideration; a set-back or continuance of up to five years; or a requestfor further information or planning. Mo. Code Regs. Ann. tit. 13, § 80-2.020(2)(A)-(E) (1980); see also Mo. Bd. of Probation & Parole, Rules and Regulations Governing the Granting of Paroles, Conditional Releases and Related Procedures 23-26 (1979) [hereinafter Rules and Regulations ]. Although “a set-back or continuance usually [would] not be longer than one year” under the 1981 regulations, “in some instances , particularly those inmates serving lengthy sentences, a set-back may be up to a maximum of five (5) years.” § 80- 2.020(B); see also id. § 80-2.020(G) (“Inmates who ar e serving long sentences and have received several continuances or set- backs, shall be scheduled for a personal parole hearing before the parole board atleast once every five (5) years following their first parole hearing.”); Rules and Regulations at 24, 26.

The parole statute in effect at the time of Nolan’s 2003 hearing and thereafter, section 217.690, requires a minimum interval of three years between reconsideration hearings for those inmates serving a senten ce for first-degree murder. Mo. Rev. Stat. § 217.690(5) (2002) (current version at Mo. Rev. Stat. § 217.690(6) (2005)) [hereinafter section 217.690(6)]. In the ev ent of an adverse parole decision, the statute’s corresponding regulations providethe Board with the option to request further information or to schedule a recons ideration hearing, but they do not provide-7- for the denial of further parole consider ation. Mo. Code Regs. Ann. tit. 14, § 80- 2.010(8) (1992).

Like the amendment at issue in Morales , section 217.690(6) “applies only to a class of prisoners for whom the likelihood of release on parole is quite remote” due to the length of their sentences and the severity of their crimes. 514 U.S. at 510. Although section 217.690(6) eliminates the Board’s discretion to schedule Nolan’s reconsideration hearings at intervals of less than three years, the parole laws in effect at the time of Nolan’s offense clearly cont emplated a set-back of up to five years between hearings for inmates like Nolan, who is serving a life sentence and who has received several set-backs. The 1981 regulations also granted the Board the option to deny further parole consider ation altogether. The recordlacks evidence that shorter intervals between hearings would likely re sult in an earlier release under the Missouri parole system. See id. at 513. The record also l acks evidence that the Board has scheduled or will schedule Nolan’s reconsider ation hearings at intervals greater than the maximum contemplated by the 1981 regul ations. Nolan esse ntially acknowledges that he lacks sufficient evidence to support his claim and requests that we remand the case for additional discovery. Appellant’s Br. at 19-20. Because Nolan failed to properly raise his discovery issues in the di strict court, however, and because we have found no error in the district court’s deci sion to grant summary judgment based on the record before it, we decline to do so. We therefore conclude that the Board’s scheduling of Nolan’s reconsideration heari ngs at three-year intervals pursuant to § 217.690(6) does not create a sufficient risk of increasing the length of his incarceration in violation of the ex post facto clause.

Nolan also claims that the Board is applying an ex post facto law to him by indicating that its adverse decision in2003 was unappealable. Nolan acknowledges, however, that the Board’s action was in dir ect contravention of the parole regulations that were in effect at the tim e of that hearing and at all relevant times. Appellant’s Br. at 8; see, e.g. , Mo. Code Regs. Ann. tit. 13, § 80-2020(3)(1980); Mo. Code Regs. Ann.5 Although the parole statute in effect atthe time of Nolan’s offense provided a liberty interest in parole release, seeWilliams v. Mo. Bd. of Probation & Parole , 661 F.2d 697, 699 (8th Cir. 1981), th e new parole statute does not. Ingrassia v. Purkett , 985 F.2d 987, 988 (8th Cir. 1993). Nolan has no continuing liberty interest in the application of the old parole statute. Cavallaro v. Groose , 908 S.W.2d 133, 135-36 (Mo. 1995).
-8- tit. 14, § 80-2010(10) (1992). Nolan’s claim fails because he has not identified any law that the Board may be applying to deny him an appeal.

We affirm the district court’s dismissal of Nolan’s ex post facto claims.

B. Due Process Claim

Nolan also argues that the Board has faile d, and is failing, to provide him with the due process he is entitled to under the Fourteenth Amendment. The due process clause protects liberty interests that arise fro m either the clause its elf or from state law. Mahfouz v. Lockhart , 826 F.2d 791, 792 (8th Cir. 1987) (citing Hewitt v. Helms , 459 U.S. 460, 466 (1983)). The Supreme Court ha s not recognized a liberty interest in parole release under the federal Constitution. Greenholtz v. Inmates of Neb. Penal & Corr. Complex , 442 U.S. 1, 7 (1979). Instead, it has recognized that “a state may create such a liberty interest when its statutes or regulations place substantive limitations on the exercise of official disc retion or are phrased in mandatory terms.” Mahfouz , 826 F.2d at 792 (citing, inter alia , Greenholtz , 442 U.S. at 11-12). When a state creates a liberty interest in parolerelease, “minimal due process standards” apply to protect that interest. Dace v. Mickelson , 816 F.2d 1277, 1279 (8th Cir. 1987) (citing Greenholtz , 442 U.S. at 16).

Nolan does not contest that he has no lib erty interest in parole release under Missouri law. 5 Instead, he argues that he is entitled to, and has failed to receive, “minimal due process” in the absence of a statutorily-creat ed liberty interest. Nolan-9- cites a pre-Greenholtz case from Rhode Island, State v. Ouimette , 367 A.2d 704 (R.I. 1976), in support of his position. The Ouimette court did not specify the source of the due process rights that it recognized, though it purported to protect them through application of a Rhode Island postconviction statute. To the extent that Ouimette relies on a liberty interest in parole release under the fede ral Constitution, that argument has been foreclosed by the Supreme Court’s decision in Greenholtz . To the extent it relies on Rhode Island law, it is inapplicable to the laws of Missouri. Accordingly, we affirm the district court’s dismissal of Nolan’s due process claim.

C. Equal Protection Claim

Finally, Nolan argues that the Board di scriminated, and is discriminating, against him in denying him parole and granti ng it to others similarly situated. Because Nolan does not allege that he is a member of a protected class or that his fundamental rights have been violated, he must pr ove that the Board systematically and “intentionally treated [him] differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech , 528 U.S. 562, 564 (2000) (per curiam) (“ class-of-one” standard); see also Phillips v. Norris , 320 F.3d 844, 848 (8th Cir. 2003). Iden tifying the difference in treatment is especially important in class-of-one cases fo r statistical reasons. In the absence of a large number of disadvantaged people shari ng a single characteristic, “there is no way to know whether the difference in treatment was occasioned by legitimate or illegitimate considerations without a comp rehensive . . . canvassing of all possible relevant factors.” Jennings v. City of Stillwater , 383 F.3d 1199, 1213-14 (10th Cir. 2004). A class-of-one plaintiff must ther efore “provide a specific and detailed account of the nature of the preferred treatment of the favored class,” esp ecially when the state actors exercise broad discretion to balance a number of legitimate considerations. Id. at 1214-15.-10- Nolan has failed to provide evidence sufficient to meet this high burden of proof. First, Nolan has failed to prove th at the Board intentionally discriminated against him or even denied him parole on an irrational basis. Instead, the record reveals that the Board has consistently gi ven a facially legitimate reason for denying Nolan parole, and there is no evidence that the Board’s stated reason is pretextual. Nolan asks us to infer that the Board has intentionally discriminated against him from his assertions that he has an excellent in stitutional record and that the circumstances surrounding his case are not as heinous as thos e in other cases. We decline to do so.

The Board has discretion to consider a wide range of individualized factors in making parole decisions. In support of his equal protection claim, Nolan merely provided a spreadsheet listing the names of approximately twenty other inmates, together with their races, the names of th eir offenses, sentence length, time served, parole hearing dates, and release dates. He also referenced c ourt cases detailing the crimes of two other inmates serving lif e sentences for first-degree murder who allegedly were paroled after a term of imprisonment shorter than that which Nolan has served. We conclude that this evidence does not provide the requisite “comprehensive . . . canvassing of all possible relevant f actors,” nor does it “provide a specific and detailed account of the nature of the prefe rred treatment of the favored class.” Id. at 1214.

The record also lacks sufficient evid ence about Nolan’s own parole file to enable a meaningful comparison between him and those he claims are similarly situated. As with his ex post facto claim, Nolan essentially admits that he lacks sufficient eviden ce to support his claim and requests that we remand the case for additional discovery, a request that we dec line. We therefore affirm the district court’s dismissal of Nolan’s equal protection claim.-11- Because we have determined that Nolan has not met his burden of proof with respect to his equal protection claim, we do not reach the issue of whether the Board was entitled to absolute immunity with resp ect to Nolan’s request for injunctive relief.

The judgment is affirmed.

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