Dybowski v. Scott ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20026
Summary Calendar
DAVID ANTHONY DYBOWSKI,
Plaintiff-Appellant,
versus
WAYNE SCOTT, director, Texas Department of Criminal Justice,
Institutional Division and GARY L. JOHNSON, Director, Texas
Department of Criminal Justice, Institutional Division,
Defendant-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-3065)
August 13, 1998
Before JOHNSON, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
David Anthony Dybowski, Texas prisoner #670925, appeals pro se
the district court’s dismissal as frivolous of his claims filed
pursuant to 42 U.S.C. §1983. When construed liberally,1 the
arguments contained in his pleadings contend that the present
statute governing the calculation of his good conduct time violates
his equal protection and due process rights.
We review the district court’s dismissal of Dybowski’s equal
*
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this opinion should not be published and is not precedent except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.
1
The pleadings of a pro se litigant must be given a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520 (1972).
protection claim for abuse of discretion. Denton v. Hernandez, 504
U.S. 25, 33-34 (1992). Dybowski was convicted of an aggravated
offense. He argues that TEX. CODE CRIM P. art. 42.18 §8(c) (West
1990) violates his equal protection rights because it prevents good
conduct time from being credited toward the prison sentences of
prisoners convicted of aggravated offenses. Classifying prisoners
by the offense of conviction does not create a suspect class.
Wottlin v. Fleming, 136 F.3d 1032, 1036-37 (5th Cir. 1998).
Furthermore, a prisoner does not have a constitutional right to be
released before the expiration of a valid sentence. Id. at 1037.
Therefore, there need only be a rational basis for the
classification. After a careful review of the record and the
controlling authorities, we hold that the district court did not
abuse its discretion in concluding that a rational basis existed.
Dybowski did not raise his due process argument in the
district court, so we review this issue for plain error. See
Highlands Ins. v. National Union Fire Ins., 27 F.3d 1027, 1031-32
(5th Cir. 1994). Dybowski contends that the repeal of TEXAS REV.
CIV. STAT. ANN. art. 6184-1 (West 1979), which would have allowed a
credit towards his sentence for good conduct time regardless of his
offense, violated his due process rights. Because Dybowski did not
earn good conduct time during the effective date of the statute,
his claim is without merit. Thus, the district court did not
plainly err in dismissing as frivolous Dybowski’s due process
claim.
AFFIRMED.
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