Jesus Jimenez v. Leticia McQueen , 460 F. App'x 458 ( 2012 )

Case: 11-20481 Document: 00511760400 Page: 1 Date Filed: 02/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 16, 2012
No. 11-20481
Summary Calendar Lyle W. Cayce
Clerk
JESUS JAIME JIMENEZ,
Plaintiff-Appellant
v.
LETICIA GARCIA MCQUEEN; SIGIFREDO SANCHEZ; EVA SHIVER;
BRENDA CHANEY; RAYMOND LUNA; ROCKY MOORE,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-1277
Before GARZA, SOUTHWICK and HAYNES, Circuit Judges.
PER CURIAM:*
Jesus Jaime Jimenez, Texas prisoner # 01363409, filed a 42 U.S.C. § 1983lawsuit against a correctional officer and several employees of the Texas
Department of Criminal Justice for allegedly violating his due process rights by
housing him in administrative segregation since 2007. The district court
dismissed the case under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) as frivolous and for
failure to state a claim on which relief may be granted. The court denied
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 11-20481
“reconsideration” under Federal Rule of Civil Procedure 60(b)(6). See Harcon
Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en
banc). We AFFIRM.
Jimenez’s notice of appeal was untimely as to the judgment dismissing his
case despite his reliance on the district court’s unauthorized extension of time
to file his post-judgment motion. See 28 U.S.C. § 2107(a); FED. R. CIV. P. 6(b);
FED. R. APP. P. 26(b); Bowles v. Russell, 551 U.S. 205, 214 (2007). The notice was
timely as to the order disposing of his Rule 60(b) motion, and we liberally
construe the notice of appeal and his brief in this court as challenging that
ruling. See Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1148 (5th Cir.
1992); Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).
Because we must recast this appeal as one that solely challenges the
denial of a Rule 60(b)(6) motion, our review is for whether the district court
abused its discretion by denying the motion. Travelers Ins. Co. v. Liljeberg
Enters., Inc., 38 F.3d 1404, 1408 (5th Cir. 1994).
Jimenez complains that he had procedural rights that were not provided
him. Before any process is due, the prisoner must have “a liberty interest that
the prison action implicated or infringed.” Richardson v. Joslin, 501 F.3d 415,
418 (5th Cir. 2007) (internal quotation marks and citation omitted). Jimenez
argues that the district court should not have dismissed his lawsuit. His
complaint, though, failed to allege sufficient factual matter, accepted as true, to
state a claim that is plausible on its face that his placement in administrative
segregation “imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995); see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Samford v. Dretke, 562
F.3d 674, 678 (5th Cir. 2009).
We have previously rejected an argument that Texas created a liberty
interest regarding placement in administrative segregation by promulgating its
Administrative Segregation Plan. Richardo v. Kinker, 73 F.3d 612, 613 (5th Cir.
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No. 11-20481
1996); Fultz v. Collins, No. 92-5214, 1993 WL 347283, at *4 (5th Cir. Aug. 20,
1993) (per curiam); see also 5TH CIR. R. 47.5.3. Jimenez relies on Hewitt v.
Helms, 459 U.S. 460 (1983), but the Supreme Court has abrogated Hewitt’s
methodology. Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005). Jimenez’s
argument that his placement in administrative segregation limits his
opportunity to participate in certain time-earning programs fails. Malchi v.
Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000).
Jimenez has failed to show that the denial of his Rule 60(b)(6) motion for
relief from the judgment dismissing his lawsuit was so unwarranted as to
constitute an abuse of discretion. Liljeberg Enters., Inc., 38 F.3d at 1408.
AFFIRMED.
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