Clarence Stephens v. Rick Perry
UNPUBLISHED OPINION FILED. [14-11238 Dismissed as Frivolous] Judge: WED , Judge: EHJ , Judge: JEG Mandate pull date is 08/21/2015 [14-11238]
Date Filed: 07/31/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 31, 2015
Lyle W. Cayce
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:14-CV-40
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Clarence Stephens, Texas prisoner # 782065, appeals from the dismissal
of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915A(b)(1). We review the dismissal de novo. Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Stephens contends that he was denied due process in connection with his
early release from prison and contests the procedures involved in determining
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 07/31/2015
his eligibility and suitability for parole and mandatory supervision. Although
Stephens is eligible for parole, he has no protected liberty interest in it and is
precluded from challenging the state parole procedure on due process grounds.
See Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir. 1997). We otherwise
may not review the propriety of the parole procedures set forth by Texas law.
See Swarthout v. Cooke, 562 U.S. 216, 220-22 (2011). The nature of Stephens’s
offense of conviction – aggravated assault with a deadly weapon – renders him
ineligible for mandatory supervision, a distinct form of early release that does
create a protected liberty interest. See Malchi v. Thaler, 211 F.3d 953, 958-59
(5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997); TEX.
GOV’T CODE ANN. §§ 508.145, 508.147, 508.149. To the extent that Stephens
maintains that his due-process rights are implicated by the adverse effects of
his prison classification on his consideration for release to parole, his claim is
unavailing because he has no protected liberty interest in his prison
classification. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).
Furthermore, Stephens contends that he is being denied equal protection
because the state statute governing mandatory supervision treats differently
offenses with the same degree of seriousness, i.e., inmates convicted of crimes
with the same range of punishment are treated differently with regard to their
eligibility for mandatory supervision. However, Stephens has not established
that he has been treated differently from other inmates who are ineligible for
mandatory supervision and, therefore, he has not shown that classifications of
similarly situated persons are treated differently. See Sonnier v. Quarterman,
476 F.3d 349, 367 (5th Cir. 2007). Moreover, the classification that he attacks,
which categorizes inmates based upon the type of offense for which they have
been convicted, does not implicate a suspect class and is rationally related to a
Date Filed: 07/31/2015
legitimate state interest. See Wottlin v. Fleming, 136 F.3d 1032, 1036 (5th Cir.
Finally, Stephens raises for the first time on appeal separation-of-powers
challenges to the state procedures for early release. We may not consider new
theories of review on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999).
Stephens’s appeal lacks an arguable basis in law or fact, and, thus, it is
dismissed as frivolous. See 5TH CIR. R. 42.2. For purposes of the three-strikes
provision of 28 U.S.C. § 1915(g), the district court’s dismissal under 28 U.S.C.
§ 1915A counts as a strike, and the dismissal of this appeal as frivolous counts
as a strike. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Stephens previously has filed another § 1983 complaint that was dismissed as
frivolous and for failure to state a claim; that dismissal also counts as a strike
under § 1915(g). See Stephens v. Livingston, No. 1:14-CV-00041 (N. D. Tex.
Oct. 22, 2014); Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). Stephens
therefore has accumulated three strikes for purposes of § 1915(g), and he is
prohibited from proceeding in forma pauperis in any civil action or appeal that
is filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
Furthermore, we warn Stephens that frivolous, repetitive, or otherwise
abusive filings will invite the imposition of sanctions, which may include
dismissal, monetary sanctions, and restrictions on his ability to file pleadings
in this court and any court subject to this court’s jurisdiction. Stephens also is
warned that he should review any pending appeals and actions and move to
dismiss any that are frivolous.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; SANCTION
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