Brandon Conway v. Don Hecker ( 2015 )

Case: 15-20042 Document: 00513280304 Page: 1 Date Filed: 11/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20042 FILED
Summary Calendar November 20, 2015
Lyle W. Cayce
Clerk
BRANDON M. CONWAY,
Plaintiff–Appellant,
versus
ATTORNEY DON HECKER;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Institutional Division, Records Department;
BOT WAREHOUSE; TEXAS BOARD OF PARDONS & PAROLES,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-3580
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Brandon Conway, Texas prisoner # 01777537, filed this 42 U.S.C. § 1983
suit for redress against the attorney who was appointed to represent him in
his criminal proceedings and to challenge the veracity of information in his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20042 Document: 00513280304 Page: 2 Date Filed: 11/20/2015
No. 15-20042
records and the use of those records in his parole proceedings. The district
court dismissed the suit as frivolous and for failure to state a claim upon which
relief could be granted under 28 U.S.C. § 1915(e)(2)(B), and this appeal ensued.
Review is de novo. See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
Consideration of the record, Conway’s filings, and authority shows no error in
the judgment.
Conway’s contention that the district court should not have dismissed
his suit under § 1915(e)(2)(B) because he wanted to pay the filing fee is under-
mined by the record, which shows that he asked the court for authorization to
proceed in forma pauperis (“IFP”). His argument that the court erred by not
considering certain claims is unavailing, because the entry of judgment of dis-
missal shows that the court rejected all the claims raised therein. See Soffar
v. Dretke, 368 F.3d 441, 470-71 (5th Cir. 2004). The rest of Conway’s argu-
ments likewise lack merit.
To raise a valid § 1983 claim, one must show that a state actor infringed
his constitutional rights. Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402,
1406 (5th Cir. 1995). Court-appointed attorneys are not state actors for § 1983
purposes when they are performing a lawyer’s traditional functions as counsel
in a criminal proceeding. Polk Cnty. v. Dodson, 454 U.S. 312, 317–18 (1981).
Because Conway’s claims against the lawyer arise from that attorney’s repre-
sentation in the criminal proceedings, the district court did not err in dis-
missing them. See id.
Because Texas law and regulations do not create a constitutionally pro-
tected liberty interest in parole, Johnson v. Rodriguez, 110 F.3d 299, 305 (5th
Cir. 1997); Creel v. Keene, 928 F.2d 707, 712 (5th Cir. 1991), Texas prisoners
cannot attack any state parole-review procedure on due-process grounds,
Johnson, 110 F.3d at 308. Accordingly, the district court did not err in
2
Case: 15-20042 Document: 00513280304 Page: 3 Date Filed: 11/20/2015
No. 15-20042
dismissing the claims concerning the procedures used to deny parole and the
denial of parole. See Doe, 66 F.3d at 1406. Finally, Conway has no constitu-
tional right to the removal of information from his prison record even if it is
false. See Velasquez v. Woods, 329 F.3d 420, 421–22 (5th Cir. 2003).
Conway has demonstrated no error in connection with the judgment, nor
has he shown that we should grant his motions for appointed counsel and
injunctive relief. Consequently, the judgment is AFFIRMED, and all outstand-
ing motions are DENIED.
Additionally, Conway is informed that the affirmance of the dismissal
counts as one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Ham-
mons, 103 F.3d 383, 387 (5th Cir. 1996); see also Coleman v. Tollefson,
135 S. Ct. 1759, 1763-64 (2015). Conway is cautioned that if he accumulates
three strikes, he will no longer be allowed to proceed IFP in any civil action or
appeal filed while he is detained or incarcerated in any facility unless he is in
imminent danger of serious physical injury. See § 1915(g).
3