Rollins v. Louisiana Deparment of Corrections Officials , 596 F. App'x 329 ( 2015 )

Case: 14-31181 Document: 00512962664 Page: 1 Date Filed: 03/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31181
United States Court of Appeals
Fifth Circuit
FILED
SYLVESTER ROLLINS, March 9, 2015
Lyle W. Cayce
Plaintiff-Appellant Clerk
v.
LOUISIANA DEPARTMENT OF CORRECTIONS OFFICIALS; JAMES M.
LEBLANC, Secretary; SHERLY L. RANTZA; PAROLE BOARD
COMMITTEE; RICHARD STALDER, Former Secretary; RONALD
BONIVILLION, Former Parole Board Chairman,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-CV-100
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Sylvester Rollins, Louisiana prisoner # 76405, moves for leave to proceed
in forma pauperis (IFP) on appeal. He challenges the district court’s dismissal
of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim
upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-31181 Document: 00512962664 Page: 2 Date Filed: 03/09/2015
No. 14-31181
He alleged that he was denied parole eligibility in violation of the Due Process
and Ex Post Facto Clauses.
When, as in this case, a district court certifies that an appeal is not taken
in good faith under § 1915(a)(3), the appellant may either pay the filing fee or
challenge the court’s certification decision. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997). Our inquiry into an appellant’s good faith “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted). If we uphold the district
court’s certification that the appeal is not taken in good faith, the appellant
must pay the filing fee or, alternatively, we may dismiss the appeal sua sponte
under 5th Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2.
The Louisiana parole statutes that Rollins relies on were in effect when
he committed the crime at issue. Therefore, he has not demonstrated an Ex
Post Facto Clause violation based on their application to him. See Garner v.
Jones, 529 U.S. 244, 249 (2000). Rollins has also not demonstrated a Due
Process Clause violation because he has no constitutionally protected liberty
interest in parole release. See Board of Pardons v. Allen, 482 U.S. 369, 373
(1987); Bosworth v. Whitley, 627 So. 2d 629, 633 (La. 1993)(“[T]he Louisiana
scheme specifically excludes parole consideration for inmates serving
uncommuted life sentences.”). Accordingly, Rollins’s motion for leave to
proceed IFP on appeal is denied, and his appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
The district court’s dismissal of Rollins’s § 1983 complaint as frivolous
and for failure to state a claim upon which relief may be granted and the
instant dismissal of this appeal as frivolous count as strikes under § 1915(g).
2
Case: 14-31181 Document: 00512962664 Page: 3 Date Filed: 03/09/2015
No. 14-31181
See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Rollins is warned that if he accumulates three strikes, he will not be allowed
to proceed IFP in any civil action or appeal unless he is under imminent danger
of serious physical injury. See § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
3