UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ HERMAN TRACY CLARK, Plaintiff - Appellant,

v. MARY FALLIN, Governor for the State of Oklahoma; ROBERT BRETT MACY, Oklahoma Pardon and Parole Board; PATRICIA HIGH, Pardon and Parole Board; VANESSA PRICE, Pardon and Parole Board; TOM GILLERT, Pardon and Parole Board, Defendants - Appellees. No. 16-6109 (D.C. No. 5:15- CV-00908-C) (W.D. Oklahoma)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before GORSUCH , BALDOCK , and McHUGH , Circuit Judges.

________________ _________________ Herman Tracy Clark, a prisoner currently in state custody and proceeding pro se, appeals the district court’s dismissal of hi s 42 U.S.C. § 1983 complaint, in which he alleges Oklahoma’s parole system violates the Constitution’s Ex Post Facto Clause and

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### June 28, 2016
Elisabeth A. Shumaker Clerk of Court2 infringes on his due process and First Amendm ent rights. A magistrate judge screened Mr. Clark’s complaint pursuant to § 1915A of the Prison L itigation Reform Act (PLRA) and entered a recommendation of dismissal for fa ilure to state a claim, which the district court adopted in full. We affirm. I. BACKGROUND Mr. Clark’s § 1983 complaint arises fro m the State of Oklahoma’s denial of his application for paro le in March 2015. 1 In his Amended Complaint, Mr. Clark named Oklahoma Governor Mary Fa llin and Oklahoma Pardon a nd Parole Board Members Robert Macy, Patricia High, Vanessa Pric e, and Tom Gillert, cl aiming Oklahoma’s 1997 Truth in Sentencing Act viol ates the Constitution’s Ex Post Facto Clause because it decreases the frequency of paro le reconsideration hearings for certain inmates from one year to three years. Mr. Clark also clai med the defendants summarily considered his application and denied an in -person hearing in violation of his due-process and First Amendment rights. He late r supplemented these argumen ts in a motion titled “Memo Under PLRA Requiring Magistrate Judge to Determine Merits of Complaint.” Pursuant to 28 U.S.C. § 636(b)(1)(B), th e district court referred the matter to a magistrate judge, who screened Mr. Clark’s complaint in accordan ce with 28 U.S.C. §§ 1915 and 1915A. 2 In reviewing the complaint, the magistrate judge distilled four

1 Mr. Clark served twenty-five years in federal prison for crimes stemming from a robbery and homicide. He was then tr ansferred to state custody, where he is currently serving a life se ntence in connection with st ate charges arising from the same incidents. 2 Under § 1915, which provides procedures for proceedings in forma pauperis, “the court shall dismiss the case at any time if the court de termines that . . . the action3 separate claims, noting Mr. Clark asserted (1) an Ex Post Facto Clause violation, (2) a due- process violation, (3) a First Amendment violation, a nd (4) a conspiracy claim. Ultimately, the magistrate judge concluded Mr. Clark failed to state an underlying constitutional claim and, accordingly, his c onspiracy claim also failed. The judge therefore recommended dismissal with pr ejudice, noting that amendment of the complaint would be futile. Mr. Clark filed an objection to the ma gistrate judge’s recommendation, raising largely the same arguments he did in his Ame nded Complaint. He also requested that the court permit him to amend his complaint “to meet the propositions expounded in [his] objection.” Pursuant to 28 U.S. C. § 636(b)(1), the district court conducted a de novo review of the issues raised by Mr. Clark an d concluded Mr. Clark merely “restate[d] the legal conclusions contained in his Amended Complaint.” Acco rdingly, the district court adopted the magistrate judge’s Report and Recommendation in its entirety. Mr. Clark then filed a motion to amend judgment pursuan t to Rule 59(e), again requesting leave to amend his complaint. The district court de nied that motion, noting it had already dismissed Mr. Clark’s Amended Complaint with prejudice and found that amendment would be futile. Mr. Cl ark timely appealed.

or appeal . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Under § 1915A, the cour t is required to screen inmates’ § 1983 complaints and “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the comp laint . . . is frivolous, malici ous, or fails to state a claim upon which relief may be gran ted.” 28 U.S.C. § 1915A(b).4 On appeal, Mr. Clark challenges only the di strict court’s dismissal of his Ex Post Facto Clause and due-process claims. 3 He also argues the district court failed to liberally construe his complaint and that its denial of his request for leave to amend was made in error. Mr. Clark also requests leave to proceed in forma pauperis (IFP ) on appeal, as the district court concluded his appeal would not be taken in good faith and denied the motion below. We affirm each of the district court’s rulings in full and deny Mr. Clark’s request to proceed IFP. A. Mr. Clark’s Ex Post Fact o Clause and Due-Process Claims We review de novo a distri ct court’s decision to dismiss an IFP complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. See Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007). And alth ough we construe Mr. Clark’s pro se pleadings liberally, “our role is not to act as his advocate.” Gallagher v. Shelton , 587 F.3d 1063, 1067 (10th Cir. 2009) . “[P]ro se parties [must] follow the same rules of procedure that govern other litigants.” Kay , 500 F.3d at 1218 (internal quotation marks omitted). 4 “We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for fa ilure to state a claim.” Id . at 1217. That is, to determine

3 Mr. Clark does cite to the First Amendm ent in his briefing, but he fails to make even a cursory argument that the dist rict court erroneously dismissed his First Amendment claim. Accordingly, we do not consider this claim. See United States v. Fisher , 805 F.3d 982, 991 (10th Cir. 2015) (“[W ]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.” (int ernal quotation marks omitted)). 4 As noted above, Mr. Clark contends th e district court failed to liberally construe his pleadings. We disagree. The di strict court generous ly distilled several claims from Mr. Clark’s pleadings that we re less than artful ly articulated.5 whether Mr. Clark has sufficiently stated his claims, we accep t as true the wellpleaded factual allegations and consider whether he ha s provided “enough facts to state a claim to relief that is plausible on its face.” See Hogan v. Winder , 762 F.3d 1096, 1104 (10th Ci r. 2014) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 547 (2007)). Because Mr. Clark is bringing his clai ms pursuant to § 1983, his Amended Complaint “must plead that each Gove rnment-official defendant, through the official’s own individual actions , has violated the Constitution.” Ashcroft v. Iqbal , 556 U.S. 662, 676 (2009). It must “contain sufficient factua l matter, accepted as true, to ‘state a claim to relief that is plau sible on its face.’” Id. at 678 (quoting Twombly , 550 U.S. at 570). And courts “will not suppl y additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney
v. New Mexico , 113 F.3d 1170, 1173–74 (10th Cir. 1997). 1. Ex Post Facto Clause Mr. Clark’s first claim, lib erally construed, is that the changes to Oklahoma’s parole system effected through the 1997 Truth in Sentencing Act violate the Constitution’s Ex Post Facto Clause. Beca use Mr. Clark fails to demonstrate how these changes led to a risk of increased punishment in li ght of his specific sentence and crimes, the district court properly dismissed his claim. “[T]he controlling inquiry” in evaluating an inmate’s Ex Post Facto Clause claim “is not whether the law is retroactive, but ‘wheth er it produces a sufficient ri sk of increasing the measure of punishment attached to the covered crimes.’” Henderson v. Scott , 260 F.3d 1213,6 1216 (10th Cir. 2001) (quoting Cal. Dep’t of Corr. v. Morales , 514 U.S. 499, 509 (1995)). This risk may be apparent faci ally, or the inmate may demonstrate the increased risk as applied to his particular circumstances. Id . at 1216–18.
Because our Henderson decision forecloses Mr. Clark’s facial challenge, see id . at 1216–17, Mr. Clark “m ust demonstrate, by eviden ce drawn from the rule’s practical implementation, that its retroactive application will result in a longer period of incarceration than un der the earlier rule.” Id . at 1216 (citation, in ternal quotation marks, and alterations omitted). In his Amended Complaint and other supplemental filings, Mr. Clark fails to s houlder this burden. As the ma gistrate judge noted, “aside from a conclusory reference to his age, [Mr. Clark] fa ils to offer any reasonable argument he faces a signifi cant risk of longer incarcer ation.” In adopting the magistrate judge’s recommenda tion, the district court therefore properly dismissed Mr. Clark’s Ex Post Facto Clause claim. 2. Due Process Mr. Clark repeats in various forms thr oughout his briefing th at the Board’s and Governor Fallin’s denial of parole, as well as the process by which they denied him parole, violated his right to due process under the Fifth and Fourteenth Amendments. But as the magistrate judge ’s recommendation correctly recognized, “[t]here is no constitutional or inherent ri ght of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex , 442 U.S. 1, 7 (1979). “A state may . . . establish a parole system, but it has no duty to do so.” Id . If a state does esta blish a parole system , it is possible for7 the state’s statutes to crea te a liberty interest that would be protected by the Constitution’s guarantee of due process. See id . at 12. Oklahoma has not, however, created such a system, and we have repeat edly concluded that a state does not create a liberty interest in parole protectable by due process wh en its parole system is discretionary. See, e.g. , Boutwell v. Keating , 399 F.3d 1203, 1213 –15 (10th Cir. 2005). Mr. Clark’s contention that Oklahoma’s paro le system creates such an interest is misguided, and the cases to which he ci tes have either been overruled or stand for the opposite position than the one he assert s. The district cour t therefore properly concluded Mr. Clark failed to state a due process claim. B. Motion to Amend, Motion to Pro ceed IFP on Appeal, Payment of Fees, and PLRA Strike We also conclude the district court di d not abuse its discretion in denying Mr. Clark leave to amend his complaint. “[T]he grant of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court.” Zenith Radio Corp. v. Hazeltine Research, Inc. , 401 U.S. 321, 330 (1971). And “we will not reverse the court’s decision absent an abuse of discretion.” Minter v. Prime Equip. Co. , 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quot ation marks omitted). Because the additional allegations in Mr. Clark’s supplemental memorandum and othe r motions fail to cure the deficiencies in his Amended Complaint, amendment woul d have been futile, and dismissal was warranted. Gohier v. Enright , 186 F.3d 1216, 1218 (1 0th Cir. 1999) (“A proposed8 amendment is futile if the complaint, as amen ded, would be subject to dismissal.”). We therefore affirm the district court’ s denial of the motion to amend. We also deny Mr. Clark’s mo tion to proceed IFP on a ppeal. To qualify for IFP status, a petitioner must demonstrate the a ppeal is taken in good faith—meaning there exists a “reasoned, nonfrivolo us argument on the law and fact s in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 1997); 28 U.S.C. § 1915(a)(3). The district court dete rmined Mr. Clark’s appeal was not taken in good faith and denied his request to procee d IFP on appeal. We also deny his renewed request to proceed IFP on appeal because, as our analysis above de monstrates, Mr. Clark failed to raise a “reasoned, no nfrivolous argument” in suppor t of his claims. And having denied his request, we remind Mr. Clark that he remains obligated to pay the full filing fee, as previously advised by the district court in its order dated May 6, 2016. Because Mr. Clark’s complaint fails to state a claim pursuan t to 28 U.S.C. § 1915(e)(2)(B)(ii), we impose one “strik e” against Mr. Clark under the PLRA, id

. § 1915(g), and it is counted as such immediately. Coleman v. Tollefson , 135 S. Ct. 1759, 1763 (2015) (“A prior dismissal on a statutor ily enumerated ground counts as a strike even if the dismissal is the subject of an appeal.”). And we impose a second strike against Mr. Clark because of the frivolity of his appeal. Jennings v. Natrona Cty. Det. Ctr ., 175 F.3d 775, 780–81 (10th Cir.1999), overruled on other grounds by Coleman , 135 S. Ct. at 1763.9 III. CONCLUSION Because Mr. Clark fails to state an Ex Post Facto Cl ause or due-process claim pursuant to 28 U.S.C. § 1915(e )(2)(B)(ii), we AFFIRM the dist rict court’s dismissal. We also AFFIRM the district court’s denial of Mr. Clark’s motion to amend and impose two strikes against Mr. Clark pursuant to 28 U.S. C. § 1915(g). Mr. Clark’s request to proceed IFP on appeal is also DENI ED, and Mr. Clark is accordi ngly reminded of his obligation to pay the filing fee in full, pursuant to the district court’s order. Entered for the Court
Carolyn B. McHugh Circuit Judge