UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

DWAIN EDWARD THOMAS, 

 Plaintiff - Appellant,

v.

KEVIN STITT, Governor; STEVEN 

BICKLEY, Executive Director of the 

Oklahoma Pardon and Parole Board; T. 

HASTINGS SIEGFRIED, Chair of the 

Oklahoma Board of Corrections; SCOTT 

CROW, Director of the Oklahoma 

Department of Corrections, 

 Defendants - Appellees.

--------------------------

CAMPAIGN FOR THE FAIR 

SENTENCING OF YOUTH,

 Amici Curiae.

No. 21-6011

(D.C. No. 5:20-CV-00944-D)

(W.D. Okla.)

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ORDER AND JUDGMENT*

_________________________________

Before HOLMES, PHILLIPS, and EID, 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

February 1, 2022

Christopher M. Wolpert

Clerk of Court

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Dwain Edward Thomas, an Oklahoma state prisoner, appeals from the district 

court’s order dismissing his 42 U.S.C. § 1983 complaint on screening under 

28 U.S.C. § 1915A(a)-(b)(1) for failure to state a claim upon which relief may be 

granted. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for 

further proceedings consistent with this order and judgment.

I. INTRODUCTION

Mr. Thomas filed suit against the Governor of Oklahoma, the Executive 

Director of the Oklahoma Pardon and Parole Board (PPB), the Chair of the Oklahoma 

Board of Corrections, and the Director of the Oklahoma Department of Corrections 

(DOC) claiming that Okla. Stat. tit. 57, § 332.7—Oklahoma’s statute governing 

parole consideration—is unconstitutional as applied to juvenile homicide offenders 

sentenced to life. Mr. Thomas alleges that Oklahoma’s parole system is 

unconstitutional under the Eighth Amendment and Article II, § 9 of the Oklahoma 

Constitution because it fails to provide a meaningful opportunity to obtain release 

based on demonstrated maturity and rehabilitation as required by the Supreme 

Court’s juvenile-sentencing precedents.

A magistrate judge screened the complaint and issued a report and 

recommendation to dismiss the complaint for failure to state a claim upon which 

relief may be granted. See § 1915A(a)-(b)(1). Mr. Thomas filed timely objections.

The district court conducted a de novo review, overruled the objections, and 

adopted the magistrate judge’s recommendation. The court found that Mr. Thomas 

failed to state a claim for relief under the Eighth Amendment and declined to exercise 

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supplemental jurisdiction over his claim under the Oklahoma Constitution. 

Accordingly, the court dismissed the complaint. Mr. Thomas appeals. 

II. MR. THOMAS’S COMPLAINT

In 1997, when he was 15 years old, Mr. Thomas pled guilty to three homicide 

offenses—one count of first-degree murder and two counts of murder. Under the 

sentencing scheme applicable at the time, the court was required to impose 

mandatory life sentences. As such, Mr. Thomas was sentenced without any 

individualized decision that considered his youth or other attendant characteristics. 

Mr. Thomas was eligible for parole consideration after serving fifteen years of each 

sentence. 

Mr. Thomas alleges that throughout more than two decades in prison, he has 

consistently demonstrated good behavior. He has received “Excellent” or 

“Outstanding” ratings in all aspects of the “current patterns of behavior” section of 

his periodic “Adjustment Review” from the Department of Corrections (DOC). Aplt. 

App. at 39 (internal quotation marks omitted). Moreover, since at least 2003, Mr. 

Thomas has maintained “Level IV” privilege status—the highest level an inmate may 

achieve under relevant operations procedures. Id. at 7. He works as a technician for 

the facility maintenance department—a position he has held for more than eighteen 

years—and has also achieved several certifications. In summary, Mr. Thomas 

maintains that he has been a model prisoner. 

Mr. Thomas has been considered for and denied parole on four occasions. On 

each occasion, his parole investigators have given favorable recommendations to the 

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PPB based on his demonstrated good behavior. Moreover, “DOC classification 

counselors assessing [his] readiness for parole have [repeatedly] noted his 

‘excellent’ record and observed that the only issue hindering his release is the State’s 

parole system.” Id. at 38. Mr. Thomas further maintains that “[n]othing in [his] 

record suggests, nor was any finding ever made, that his crime reflected that he was 

among the rarest juveniles whose crime reflects permanent incorrigibility.” Id. at 37 

(brackets and internal quotation marks omitted). 

Despite his excellent record, Mr. Thomas has never progressed past the first 

stage of parole review. To the best of his knowledge, the PPB has refused to 

recommend him for parole solely due to the “aggravating factors associated with the 

original crime.” Id. at 13, 26, 36 (internal quotation marks omitted). 

Turning to Oklahoma’s parole system, Mr. Thomas states that PPB regulations 

establish only the timing of parole review and a two-stage review process. “The first 

stage is a ‘jacket review,’” when the PPB votes on whether to pass the offender to 

stage two. Id. at 28. At stage two, the PPB votes to determine whether to 

recommend parole. 

According to Mr. Thomas, these threadbare regulations make no distinctions 

or accommodations for individuals who committed crimes as juveniles. And to make 

matters worse, Mr. Thomas alleges “PPB’s practices penalize [juvenile offenders] by 

relying on risk assessment tools that assess the individual as if frozen in time upon 

their arrival,” and, as such, do not consider their “maturation over time, 

accomplishments, or institutional record[s].” Id. at 29. Further, there are no 

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evidentiary rules, no right to obtain expert assistance or testimony, no crossexamination, no compulsory process, no assistance of counsel, no right to challenge 

the accuracy of any information in the PPB’s file, and no right to an explanation. 

Mr. Thomas alleges that the authority to grant parole to any person convicted 

of a violent crime, rests exclusively with the Governor. Although the law 

contemplates that the Governor’s parole power may be constrained, according to 

Mr. Thomas, no constraints or enforceable standards have ever been adopted. This 

means the Governor can reject the PPB’s recommendation for any reason, without 

any explanation or opportunity for review. 

III. LEGAL FRAMEWORK

Mr. Thomas’s claims are based on a series of Supreme Court cases beginning 

with Roper v. Simmons, 543 U.S. 551 (2005), followed by Graham v. Florida, 560 

U.S. 48 (2010), continuing in Miller v. Alabama, 567 U.S. 460 (2012) and 

Montgomery v. Louisiana, 577 U.S. 190 (2016), and addressed most recently in Jones 

v. Mississippi, 141 S. Ct. 1307 (2021). Collectively, these cases frame the contours 

of the Eighth Amendment as applied to the sentencing of juvenile offenders. 

Roper held that the Eighth Amendment prohibits sentencing juvenile offenders 

to death. See 543 U.S. at 568. Building on Roper, which recognized the lesser 

culpability of juveniles and their capacity for change, Graham held that the Eighth 

Amendment categorically bars sentencing juvenile offenders to life without parole 

for non-homicide offenses. See 560 U.S. at 74. 

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In Miller, the Court extended its reasoning in Graham to hold that the Eighth 

Amendment prohibits imposing a mandatory sentence of life without parole on a 

juvenile homicide offender. See 567 U.S. at 479. Based on its recognition that a

lifetime in prison is a disproportionate sentence for all but those juveniles whose 

crimes reflect “irreparable corruption,” id. at 479-80, the Court held that that 

“mandatory penalty schemes” that “remov[e] youth from the balance” and “prevent 

the sentencer from taking account of these central considerations,” are 

unconstitutional, id. at 474. While this does not mean that “‘[a] State is . . . required 

to guarantee eventual freedom,’ [it] must provide ‘some meaningful opportunity to 

obtain release based on demonstrated maturity and rehabilitation.’” Id. at 479

(quoting Graham, 560 U.S. at 75). 

In Montgomery, the Court gave retroactive effect to Miller’s rule that “life 

without parole [is] an unconstitutional penalty for a class of defendants because of 

their status—that is, juvenile offenders whose crimes reflect the transient immaturity 

of youth.” 577 U.S. at 208. When the State has imposed a mandatory sentence of 

life without parole on a homicide juvenile offender, it can cure that violation in one 

of two ways: (1) the State can conduct an individualized sentencing proceeding and 

resentence the offender to life without parole if it follows a process that considers 

youth and its attendant characteristics1 or (2) the State can allow juvenile homicide 

1

 See Jones v. Mississippi, 141 S. Ct. 1307, 1311 (2021) (holding that before 

sentencing a juvenile homicide offender to life without parole, a sentencer must 

“consider an offender’s youth and attendant characteristics,” but need not make a 

specific finding regarding incorrigibility) 

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offenders to be considered for parole. See id. at 212. “Allowing those offenders to 

be considered for parole ensures that juveniles whose crimes reflected only transient 

immaturity—and those who have since matured—will not be forced to serve a 

disproportionate sentence in violation of the Eighth Amendment.” Id. “Those 

prisoners who have shown an inability to reform will continue to serve life 

sentences,” while “[t]he opportunity for release will be afforded to those who 

demonstrate the truth of Miller’s central intuition—that children who commit even 

heinous crimes are capable of change.” Id. 

Relying on these precedents, Mr. Thomas maintains that it is not enough for 

Oklahoma to impose a life sentence that makes him eligible for parole; instead, the 

State must operate a system that provides what the Eighth Amendment requires—a 

meaningful opportunity to obtain release based on demonstrated maturity and 

rehabilitation. He further alleges that Oklahoma’s ad hoc system of executive 

clemency falls woefully short. 

IV. STANDARD OF REVIEW

“Dismissal for failure to state a claim is a legal question we review de novo.” 

Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). Our review is “for 

plausibility; that is, whether the complaint includes enough [well-pleaded] facts to 

state a claim to relief that is plausible on its face.” Id. (internal quotation marks 

omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are wellpleaded factual allegations, a court should assume their veracity and then determine 

whether they plausibly give rise to an entitlement to relief.”).

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A claim is facially plausible “when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin 

to a probability requirement, but it asks for more than a sheer possibility that a 

defendant has acted unlawfully.” Id. (internal quotation marks omitted). 

V. ANALYSIS

The district court determined that Mr. Thomas’s complaint failed to state a 

claim for relief under the Eighth Amendment claim for three reasons. First, the court 

found “Graham’s holding” that “juvenile nonhomicide offenders must be afforded 

some meaningful opportunity to obtain release based on demonstrated maturity and 

rehabilitation” applies only “to offenders convicted of non-homicide offenses.” Aplt. 

App. at 110 (internal quotation marks omitted). The court thus concluded that “to 

the extent Graham” requires a state parole system to provide a meaningful 

opportunity to obtain release, “th[at] requirement[] do[es] not extend to juvenile 

homicide offenders such as [Mr. Thomas].” Id. But as the Supreme Court explained 

in Miller, “Graham’s reasoning implicates any life-without-parole sentence imposed 

on a juvenile, even as its categorical bar [against life sentences without parole] 

relates only to nonhomicide offenses.” 567 U.S. at 473. 

Second, the district court found that although “Miller . . . prohibits mandatory 

life-without-parole sentences for juvenile offenders” and “Montgomery . . . provided 

that a Miller violation could be remedied by permitting juvenile homicide offenders 

to be considered for parole,” neither case “expanded existing parole procedures for 

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persons convicted as juveniles.” Aplt. App. at 110-11. But the Supreme Court has 

not specifically addressed Mr. Thomas’s argument—whether the Eighth Amendment 

requires the State to operate a parole system that affords a meaningful opportunity to 

obtain release based on demonstrated maturity and rehabilitation, or whether simply 

making a juvenile lifer eligible for parole is enough. Also, a fair reading of the cases 

does not foreclose Mr. Thomas’s claims. 

Last, the district court found that “while Miller’s holding included a 

procedural component in that it requires a sentencer to consider a juvenile offender’s 

youth and attendant characteristics before determining that life without parole is a 

proportionate sentence, that procedure was not violated here because [Mr. Thomas] 

was not sentenced to life without parole.” Id. at 111 (internal quotation marks 

omitted). Or as Mr. Thomas frames the order: 

[T]he district court held that as long as a state on paper offers a purported 

“parole” system for juvenile homicide offenders, that state has satisfied its 

constitutional obligations even if that system operates as a wholly arbitrary 

system of ad hoc executive clemency that provides no meaningful 

opportunity to obtain release based on demonstrated maturity and 

rehabilitation. 

Aplt. Opening Br. at 24. 

Regardless of how the district court’s order is framed, it purports to address 

complex issues of first impression without an opportunity for the parties to develop 

the facts and their legal arguments. Our careful review of Mr. Thomas’s complaint 

and his arguments on appeal convinces us that he has stated plausible claims for 

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relief. This is not to say that Mr. Thomas will prevail; however, the complaint 

contains enough well-pleaded facts to plausibly entitle him to relief. 

VI. CONCLUSION

The district court’s order dismissing Mr. Thomas’s complaint is vacated, and 

the case remanded for further proceedings consistent with this order and judgment. 

Entered for the Court

Gregory A. Phillips

Circuit Judge

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