BLD-003 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-1957 ___________

ROBERT SAUNDERS, Appellant

v.

LT. GOV. BETHANY A. HALL-LONG, President Board of Pardons; Hon. JEFFREY W. BULLOCK, Sec. Board of Pardons; Hon. ANDRE G. BOUCHARD, Member-Board of Pardons; Hon. COLLEEN K. DAVIS, Member-Board of Pardons; Hon. KATHLEEN F. MCGUINESS, Member-Board of Pardons; JACQUELINE PARADEE METTE, Governor's Legal Advisor ____________________________________ On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1-19-cv-00957) District Judge: Honorable Maryellen Noreika ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 7, 2021 Before: MCKEE, GREENAWAY, JR. and PORTER, Circuit Judges

(Opinion filed: December 3, 2021) _________

OPINION * _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Appellant Roberts Saunders appeals from the District Court’s order dismissing his

complaint under 28 U.S.C. § 1915A(b)(1). For the following reasons, we will summarily

affirm.

Saunders, a Delaware state inmate serving a sentence of life without parole, filed a

complaint pursuant to

against the President, Secretary, and three

members of the Delaware Board of Pardons. The complaint sought damages and

injunctive relief for violations of Saunders’ equal protection and due process rights,

stemming from the denial of a commutation. He alleged generally that the Board

employs racially discriminatory practices in commutation cases, and that its decisions are

arbitrary and capricious. Construed liberally, the complaint also alleged that, in denying

his application for a commutation in 2018, the Board relied on inaccurate evidence, failed

to consider pertinent evidence, and denied him the opportunity to appear before it.

After screening the complaint, the District Court dismissed it without prejudice

and with leave to amend pursuant to 28 U.S.C. § 1915A(a)(B)(1) and (2). Saunders filed

an amended complaint alleging the same allegations against the same defendants and the

Deputy Legal Advisor to the Governor of Delaware. 1 The District Court sua sponte

dismissed the amended complaint as legally frivolous pursuant to § 1915A(b)(1).

Saunders appeals.

1 In contrast to the original complaint, the amended complaint sued the President of the Board of Pardons in her individual, rather than her official, capacity. 2 We have jurisdiction pursuant to

. We exercise de novo review

over the dismissal of a complaint under § 1915A(b)(1). See Dooley v. Wetzel,

(3d Cir. 2020).

We agree with the District Court that Saunders’ due process claims were subject to

dismissal. An inmate has no constitutional or inherent right to the commutation of his

sentence under Ohio Adult Parole Authority v. Woodward,

(1998),

and Connecticut Board of Pardons v. Dumschat,

(1981), and, as a

general rule, clemency or pardon proceedings are ordinarily left to the discretion of the

executive and “are rarely, if ever, appropriate subjects for judicial review,” Woodward,

. The Delaware pardon process is a procedure created by the state

Constitution. It gives “the Governor the power to pardon an applicant unconditionally,

conditionally, or not at all after receiving a recommendation by the Board of Pardons.”

Arnold v. State,

, 1182 (Del. 2012). The state Constitution also creates and

empowers a Board of Pardons which makes a recommendation to the Governor. The

recommendation is not binding on the Governor and nothing in the Delaware

Constitution or Code restricts the discretion of either the Board or the Governor. See

State v. Sullivan,

(Del. Super. Ct. 1999). Therefore, even if the

Board relied on inaccurate information or failed to consider all of the evidence supporting

Saunders’ application (both of which the Board denies, see ECF No. 16-2 at 13), absent

allegations to support his claim that the state acted arbitrarily, Saunders has failed to state

a claim for relief. See Woodard,

(O’Conner, J., concurring) (recognizing 3 that “some minimal procedural safeguards apply to clemency proceedings” which prevent

“the state [from] arbitrarily den[ying] a prisoner any access to its clemency process”).

The District Court also properly dismissed Saunders’ equal protection claim.

Saunders, who is African American, alleged that the Board of Pardons employs “regular

discriminatory practices” and a “double-standard” for African Americans and Caucasians

in the commutation process, and that African-American prisoners serve longer sentences

and “have historically [been] denied commutation on life without parole.” ECF No 16 at

3-5. Although Saunders compares generally the commutation process of certain African-

American and Caucasian prisoners, he fails to sufficiently allege facts from which a court

could find that he was “similarly situated” to Caucasian prisoners who were treated

differently. 2 See Artway v. Att’y Gen.,

, 1267 (3d Cir. 1996) (the Equal

Protection Clause “is not a command that all persons be treated alike but, rather, a

direction that all persons similarly situated should be treated alike” (quotation marks

omitted)); see also Townes v. Jarvis,

(4th Cir. 2009) (noting that the

unequal treatment of similarly situated persons is an element of an equal protection

claim). That is, he has failed to identify Caucasian prisoners whose crimes, prior

2 As an example of differential treatment based on race, Saunders notes the commutation of Robert J. Martin, a Caucasian prisoner who, like Saunders, was convicted of first- degree murder, but who had also shot someone while trying to escape from custody. The Board of Pardons noted that Martin’s and Saunders’ cases were “dissimilar in that Mr. Martin was not the actual shooter in the murder case and was actually outside of the residence” when the murder occurred. ECF No. 16-2 at 13.

4 criminal histories, disciplinary records, and background are similar to his, and whose

applications for commutation were approved by the Board. See generally Fuller v. Ga.

State Bd. of Pardons & Paroles,

(11th Cir. 1988) (“The decision to

grant or deny parole is based on many factors such as criminal history, nature of the

offense, disciplinary record, employment and educational history, etc. [In order to state

an equal protection claim, a prisoner must] show himself to be similarly situated,

considering such factors, with any inmates who were granted parole.”). Because

Saunders failed to allege a facially plausible equal protection claim, the District Court

properly dismissed it under § 1915A(b)(1). 3

Based on the foregoing, we will summarily affirm the District Court’s judgment. 4

3 We need not decide whether the amended complaint was frivolous, as the District Court found, because it was subject to dismissal under 28 U.S.C. § 1915A(b)(1) for failure to state a claim, and we agree with the District Court that any further amendment would be futile. See Dooley,

(noting that “a claim is frivolous only where it depends on an ‘indisputably meritless legal theory’ or a ‘clearly baseless’ or ‘fantastic or delusional’ factual scenario”) (quotation marks and citation omitted)). The consequences are the same whether the complaint is dismissed as frivolous or for failure to state a claim. See

(e), (g). 4 Saunders’ motions for appointment of counsel and to expedite the appointment of counsel are denied. 5