Roger Wyatt v. Rick Thaler, et al

Filing

UNPUBLISHED OPINION FILED. [10-50166 Dismissed as Frivolous] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 01/10/2011 [10-50166]

Roger Wyatt v. Rick Case: 10-50166 Thaler, et al

Document: 00511326794 Page: 1 Date Filed: 12/20/2010

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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 . 10-50166 S u m m a r y Calendar December 20, 2010 Lyle W. Cayce Clerk

R O G E R LEE WYATT, P la in t if f -A p p e lla n t v. R I C K THALER; BRAD LIVINGSTON, Executive Director of Parole Board; R I S S I E OWENS, Chairman of the Parole Board; JACKIE DENOYELLES, P a r o le Board Member; JAMES PAUL KIEL, Parole Board Member; FRANK H O K E , Administrator, 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 Western District of Texas U S D C No. 1:09-CV-779

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* R o g e r Lee Wyatt, Texas prisoner # 427786, appeals the district court's d is m is s a l of his 42 U.S.C. § 1983 suit for frivolousness pursuant to 28 U.S.C. § 1915(e). He argues that he improperly was denied release on mandatory s u p e r v is io n after he completed 20 calendar years of his sentence. He contends t h a t the parole board failed to apply the mandatory supervision law that was
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50166 Document: 00511326794 Page: 2 Date Filed: 12/20/2010 No. 10-50166 o p e r a t i v e at the time of his offense and wrongly denied him automatic release o n mandatory supervision after he was denied parole; he argues that the parole b o a r d erroneously applied a version of the mandatory supervision law that b e c a m e effective after the date of his offense. He also asserts that he was unable t o present this argument competently because resources detailing the relevant m a n d a t o r y supervision laws were removed from the prison law library. We r e v ie w the dismissal as frivolous for an abuse of discretion. See Norton v. D im a z a n a , 122 F.3d 286, 291 (5th Cir. 1997). W y a t t has not shown that the parole board did not apply the appropriate m a n d a t o r y supervision law or that he otherwise is presently eligible for release o n mandatory supervision. The mandatory supervision scheme operative at the t im e of Wyatt's offense set forth that a Texas prisoner not on parole, except a p e r s o n under a sentence of death, was to be released to mandatory supervision w h e n the calendar time he has served plus his accrued good conduct time e q u a le d the maximum term to which he was sentenced. TEX. CODE CRIM. PROC. a r t . 42.12 § 15(c) (Vernon 1984) (recodified as art. 42.18, § 8(c), and later as TEX. G OV'T CODE ANN. § 508.147) (Vernon 1998)). The record indicates that Wyatt h a s not yet met the requirements for release on mandatory supervision. Because W y a t t is not currently entitled to release on mandatory supervision, he has not e s t a b lis h e d that the parole board erred in its determination of his eligibility for r e le a s e on mandatory supervision. Thus, he has not shown that the district c o u r t abused its discretion in dismissing his contention that he was entitled to r e le a s e on mandatory supervision as frivolous. See Norton, 122 F.3d at 291. S im ila rly , given Wyatt's ineligibility for release on mandatory supervision, h is argument that he was denied access to the courts because the prison law lib r a r y lacked resources related to the mandatory supervision laws is unavailing. A n y failure of the prison law library to have resources detailing the mandatory s u p e r v is io n laws is immaterial because the provision of further resources would n o t have bolstered the merits of Wyatt's claim. He therefore has not shown that 2

Case: 10-50166 Document: 00511326794 Page: 3 Date Filed: 12/20/2010 No. 10-50166 h is ability to pursue a nonfrivolous legal claim was hindered by the defendants. See Lewis v. Casey, 518 U.S. 343, 351-52 (1996). Accordingly, he has not shown t h a t the district court abused its discretion in determining that this claim was s u b je c t to dismissal as frivolous. See Norton, 122 F.3d at 291. W y a t t also argues that the district court erred in dismissing his complaint w it h o u t first conducting an evidentiary hearing. Because Wyatt has not shown t h a t he could assert any viable claims if given the opportunity for additional fa c t u a l development, the district court did not err in dismissing the complaint w it h o u t conducting an evidentiary hearing. See Eason v. Thaler, 14 F.3d 8, 10 (5 t h Cir. 1994). W y a t t 's instant appeal lacks merit, see Howard v. King, 707 F.2d 215, 220 (5 t h Cir. 1983), and should be dismissed as frivolous. See 5TH CIR. R. 42.2. The d is m is s a l of this appeal as frivolous and the district court's dismissal of Wyatt's § 1983 suit pursuant to § 1915(e) count as two strikes for purposes of § 1915(g), w h ic h places filing limits on IFP prisoners who file frivolous lawsuits and a p p e a ls . See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Wyatt is advised that once he accumulates three strikes, he may not proceed IFP in any c iv il action or appeal filed while he is incarcerated or detained in any facility u n le s s he is under imminent danger of serious physical injury. See § 1915(g). A P P E A L DISMISSED; SANCTION WARNING ISSUED.

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