Larry Ard v. James LeBlanc, et al

Filing 920101220

Opinion

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Case: 10-30543 Document: 00511325314 Page: 1 Date Filed: 12/17/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-30543 S u m m a r y Calendar December 17, 2010 Lyle W. Cayce Clerk L A R R Y JOE ARD, P la in t if f -A p p e lla n t v. J A M E S LEBLANC; BUDDY CALWELL, Custodian; HOWARD PRINCE, C a r e t a k e r ; STEPHEN WAGUESPACK, Classification Officer; JOHN L. M C G O V E R N , III; KEN AUGUST; REGINALD BROCK; CRISTY AUCOIN; C L A Y WILLIAMS,, 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 Middle District of Louisiana U S D C No. 3:10-CV-169 B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* L a r r y Joe Ard, Louisiana prisoner # 200821, seeks leave to proceed in fo r m a pauperis (IFP) on appeal from the district court's dismissal of his 4 2 U.S.C. 1983 complaint as frivolous. In his complaint, he averred that (1) he w a s repeatedly denied relief through the Administrative Remedy Procedure; (2 ) the defendants improperly relied on his past arrest history and disciplinary 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-30543 Document: 00511325314 Page: 2 Date Filed: 12/17/2010 No. 10-30543 r e c o r d to deny his requests to participate in a work release program; and (3) he w a s issued a false disciplinary report and was denied due process at a d is c ip lin a r y hearing. Ard contended that the defendants conspired to deny him h is constitutional rights and also sought to hold Attorney General Buddy C a ld w e ll liable on the basis of respondeat superior. By moving to proceed IFP, Ard is challenging the district court's c e r t ific a t io n decision that his appeal was not taken in good faith. See Baugh v. T a y lo r , 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant's good fa it h "is limited to whether the appeal involves legal points arguable on their m e r it s (and therefore not frivolous)." Howard v. King, 707 F.2d 215, 220 (5th C ir . 1983). W it h regard to his Administrative Remedy Procedure claim, Ard fails to c o h e r e n t ly address the basis of the district court's dismissal of the claim, only s e t t in g forth case law and failing to argue how the cited authorities support his c la im . Accordingly, he has abandoned the claim. See Yohey v. Collins, 985 F.2d 2 2 2 , 224-25 (5th Cir. 1993). Similarly, Ard fails to identify any error in the d is t r ic t court's dismissal of his conspiracy claim and his claim against Attorney G e n e r a l Buddy Caldwell; he merely recites boilerplate law and makes no effort t o challenge the district court's decision. Ard has thus abandoned the claims. See id. H is challenge to the disciplinary proceeding fails. Ard overlooks the fact t h a t his disciplinary case was overturned by his administrative appeal, and, t h u s , any error in the disciplinary proceeding was cured. No liberty interest was im p lic a te d . See Sandin v. Conner, 515 U.S. 472, 483-84 (1995). "The [C ]o n s tit u t io n demands due process, not error-free decision-making. . . ." McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983). Ard argues that he did not receive due process in connection with the d e n i a l of his requests to participate in a work release program. "A protected lib e r t y interest exists only when a [statute] or regulation uses mandatory 2 Case: 10-30543 Document: 00511325314 Page: 3 Date Filed: 12/17/2010 No. 10-30543 la n g u a g e to place a substantive limit on official discretion." Rublee v. Fleming, 1 6 0 F.3d 213, 217 (5th Cir. 1998) (internal quotations and citations omitted). Because the statute at issue does not create a liberty interest in a work release p r o g r a m , Ard has failed to allege a due process claim. See Welch v. Thompson, 2 0 F.3d 636, 643-44 (5th Cir. 1994). H i s appeal is without arguable merit and, thus, frivolous. See Howard, 7 0 7 F.2d at 219-20. Because the appeal is frivolous, it is dismissed. See 5TH CIR. R . 42.2. Ard is cautioned that the dismissal of this appeal as frivolous counts as a strike under 28 U.S.C. 1915(g), as does the district court's dismissal of his c o m p la in t as frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th C ir . 1996). He, therefore, has two strikes under 1915(g). Ard is cautioned that if he accumulates three strikes under 1915(g), he will not be able to proceed I F P in any civil action or appeal filed while he is incarcerated or detained in any fa c ilit y unless he "is under imminent danger of serious physical injury." See 1915(g). I F P DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED. 3

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