* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41455

Summary Calendar

RICHARD DELANEY KYLES,

Plaintiff-Appellant,

versus

GERALD GARRETT; TROY FOX,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Southern District of Texas

(3:03-CV-53)

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

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Richard Delaney Kyles, Texas prisoner #

257935, proceeding pro se, appeals the district court’s dismissal

of his 42 U.S.C. § 1983 suit challenging Texas’s new parole

procedures. The court found that Kyles’s action was frivolous and

failed to state a claim on which relief could be granted. We

review a dismissal as frivolous for an abuse of discretion. See

Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). We review a

dismissal for failure to state a claim de novo. See Harris v.
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Hegmann, 198 F.3d 153, 156 (5th Cir. 1999) (§ 1915(e)(2)(B)); Ruiz

v. United States, 160 F.3d 273, 275 (5th Cir. 1998)(§ 1915A). 

Kyles’s first contention is that the new Texas parole

procedure violates the Ex Post Facto Clause by retroactively

changing the manner in which parole is granted, thereby subjecting

him to a risk of a longer term of imprisonment. Under the

procedure in place at the time of Kyles’s conviction, Texas law

required only two of three votes of a regional panel for parole.

The amended version of the parole procedure requires a majority

vote of the entire 18-member board. Kyles does not seek to

invalidate prior parole proceedings or to obtain immediate release;

rather, he seeks only to have the former parole scheme apply to his

future parole hearings. Thus, his action is properly brought

pursuant to 42 U.S.C. § 1983. See Allison v. Kyle, 66 F.3d 71, 73

(5th Cir. 1995). 

As Kyle correctly asserts, a retroactive change in the law

governing parole might violate the Ex Post Facto Clause. See

Garner v. Jones, 529 U.S. 244, 250 (2000). The inquiry is whether

the change in law creates “a sufficient risk of increasing the

measure of punishment attached to the covered crimes.”

Id. (internal quotation marks and citation omitted). A new

procedure that creates only a speculative and attenuated risk of

increasing the measure of punishment, however, does not violate the

Ex Post Facto Clause. See California Dep’t of Corrections v.

Morales, 514 U.S. 499, 513 (1995). 
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Kyles has alleged that two of the three members of the

regional panel that would have considered his parole application

under the former procedure have twice voted for his release. This

allegation is supported by minutes of the parole board. Thus, the

risk of increased punishment in his case is not entirely

speculative or attenuated. Therefore, we cannot say that Kyles’s

complaint lacks any arguable basis in fact or law such that it is

frivolous, see Martin, 156 F.3d at 580, or that, taking Kyles’s

allegations as true, it appears that no relief is available. See

Harris, 198 F.3d at 156. We express no opinion on the merits of

the case, but we conclude that, at this stage of the proceedings,

the district court erred in dismissing Kyles’s complaint with

respect to his ex post facto challenge as frivolous and for failure

to state a claim. 

In contrast, we find no error in the district court’s

dismissal of Kyles’s equal protection claim. He correctly asserts

that the Equal Protection Clause may give rise to a cause of action

on behalf of a “class of one,” if the plaintiff shows that he has

been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in

treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000). Beyond conclusional allegations that others similarly

situated have been granted parole, though, Kyles offers no specific

factual support for his assertions. See Brinkmann v. Johnston, 793

F.2d 111, 113 (5th Cir. 1986) (plaintiff in § 1983 action must
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state specific facts, not merely conclusory allegations, to support

his claim). 

Although Kyles claims that he requires discovery to obtain

information to support his claim, his argument fails. Even if

there were others who were treated differently, Kyles has not

alleged any facts to indicate that such different treatment had no

rational basis or was motivated by any ill will or illegitimate

animus. See Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir. 2000),

overruled on other grounds, McClendon v. City of Columbia, 305 F.3d

314, 328-29 (5th Cir. 2002) (en banc). Kyles was granted one

opportunity to amend his complaint, and he has failed to show how

a Spears hearing or further amendment of his complaint would enable

him to further develop his claim. See Beck v. Lynaugh, 842 F.2d

759, 761 (5th Cir. 1988) (a district court is not required to hold

a Spears hearing in every case). The district court did not err in

denying Kyles leave to amend before ordering this claim dismissed.

See Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999). 

For the foregoing reasons, the judgment of the district court

dismissing Kyles’s claims based on the Ex Post Facto Clause is

VACATED, and this claim is REMANDED for further proceedings

consistent with this opinion. In all other respects, however,

including dismissal of Kyles’s equal protection claim, the judgment

of the district court is AFFIRMED.
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