Michael Warren v. Rissie Owens, et al

Filing

UNPUBLISHED OPINION FILED. [10-20315 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 01/04/2011 [10-20315]

Michael Warren v. Rissie e: 10-20315 Cas Owens, et al

Document: 00511321278 Page: 1 Date Filed: 12/14/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20315 S u m m a r y Calendar December 14, 2010 Lyle W. Cayce Clerk

M I C H A E L JOHN WARREN, P la in t if f -A p p e lla n t v. R I S S I E OWENS, Individually and in Her Official Capacity as Chairwoman, T e x a s Board of Pardons and Paroles; THOMAS FORDYCE, Individually and in H is Official Capacity as Member, Texas Board of Pardons and Paroles; GERALD G A R R E T T , Individually and in His Official Capacity as Member, Texas Board o f Pardons and Paroles, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-3758

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* M ich a e l John Warren, Texas prisoner # 455668, appeals the district court's d is m is s a l pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2) as frivolous and for fa ilu r e to state a claim of his 42 U.S.C. § 1983 complaint. We review such d is m is s a ls de novo, using the same standard applicable to dismissals pursuant

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 10-20315 Document: 00511321278 Page: 2 Date Filed: 12/14/2010 No. 10-20315 t o Federal Rule of Civil Procedure 12(b)(6). See Geiger v. Jowers, 404 F.3d 371, 3 7 3 (5th Cir. 2005); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). W a r r e n argues that members of the Texas Board of Pardons and Parole v io la t e d his rights under the Ex Post Facto Clause by applying retroactively to h is case current laws and statutes related to the length of time between parole h e a r in g s . The argument is unavailing because the potential five-year set-off p r e s e n t s no ex post facto violation; its effect on increasing Warren's punishment is merely conjectural. See California Dep't of Corrs. v. Morales, 514 U.S. 499, 5 0 9 (1995). W a r r e n also argues that the district court erred in dismissing his c o m p la in t before serving the defendants. Section 1915(e)(2)(B)(i), (ii) and

§ 1915A instruct the district court to dismiss an in forma pauperis complaint if t h e court determines that the action is frivolous or malicious or does not state a claim for which relief may be granted. Black, 134 F.3d at 733. B e c a u s e Warren's claim had no arguable constitutional merit, the district c o u r t did not err in dismissing the complaint with prejudice as frivolous and for fa ilu r e to state a claim. See Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2 0 0 7 ); Black, 134 F.3d at 733. The judgment of the district court is affirmed. T h e district court's dismissal of Warren's complaint as frivolous counts as a strike pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 3 8 3 , 387-88 (5th Cir. 1996). Warren is warned that if he accumulates three s t r ik e s , he will not be permitted to proceed IFP in any civil action or appeal filed w h ile he is incarcerated or detained in any facility unless he is under imminent d a n g e r of serious physical injury. See § 1915(g). A F F I R M E D ; SANCTION WARNING ISSUED.

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