Jessie Perry v. Anthony Allemand , 687 F. App'x 352 ( 2017 )

Case: 16-30323 Document: 00513962468 Page: 1 Date Filed: 04/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30323
Fifth Circuit
FILED
Summary Calendar April 21, 2017
Lyle W. Cayce
JESSIE LEE PERRY, Clerk
Plaintiff-Appellant
v.
ANTHONY ALLEMAND, Security Warden; KRYSTLE SIMON, Programs
Manager; ALLEN CORRECTIONAL CENTER; KEITH COOLEY, WARDEN;
JAMES M. LEBLANC, Secretary of Department of Corrections; GEO GROUP,
INCORPORATED,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:14-CV-3090
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Jessie Lee Perry, Louisiana prisoner # 109014, proceeding in forma
pauperis (IFP), filed this 42 U.S.C. § 1983 action against Allen Correctional
Center Assistant Warden Anthony Allemand, Warden Keith Cooley, Officer
Krystle Simon, GEO Group, Inc., and Louisiana Department of Corrections
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30323
Secretary James LeBlanc. Perry alleged that the defendants violated his
Fourteenth Amendment due process and equal protection rights because,
before returning to the general inmate population after completing a
disciplinary punishment, he was required by the administrative segregation
review board to wear a red and white striped jumpsuit for 30 days, be placed
on a special tier in Jupiter Unit for six months, and have his contact visitation
privileges taken away for an additional six months because this was his third
conduct report. The district court dismissed Perry’s complaint with prejudice
as frivolous and for failure to state a claim for which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B).
An in forma pauperis complaint may be dismissed as frivolous pursuant
to § 1915(e)(2)(B)(i) if it has no arguable basis in law or in fact. Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). Such dismissals as frivolous are
reviewed for abuse of discretion. Id. A dismissal for failure to state a claim
upon which relief may be granted under § 1915(e)(2)(B)(ii) is reviewed under
the same de novo standard as a dismissal under Federal Rule of Civil
Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
“When a district court dismisses a complaint both as frivolous and as failing to
state a claim under §§ 1915(e)(2)(B)(i) & (ii), we review the dismissal de novo.”
Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).
The additional sanctions of which Perry complains, being required to
wear a particular jumpsuit for 30 days, being housed in a special tier for six
months, and having contact visitation privileges taken away for six months,
do not impose the type of atypical and significant hardship that would give rise
to a liberty interest protected by the Due Process Clause. See Sandin
v. Conner, 515 U.S. 472, 484 (1995).
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Perry’s real complaint is that according to the rules and regulations
governing the prison, the administrative segregation review board, as opposed
to the original disciplinary board, allegedly did not have the authority to
impose additional sanctions when it reviewed his case and determined whether
and under what conditions Perry could be released from administrative
segregation and returned to the general population. Perry is not
constitutionally entitled to have the prison follow its own rules. See Myers v.
Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996); Jackson v. Cain, 864 F.2d 1235,
1251 (5th Cir. 1989).
As for his claim of a denial of equal protection, Perry does not contend
that he is a member of a protected class for equal protection purposes. Rather,
he asserts that he was singled out. An equal protection claim may be brought
by a “class of one” if the plaintiff alleges that there was intentionally different
treatment of other similarly situated persons and that there was no rational
basis for the different treatment. Village of Willowbrook v. Olech, 528 U.S.
562, 564-65 (2000). “[A]bsent any allegation of improper motive, a mere claim
of inconsistent outcomes in particular, individual instances furnishes no basis
for relief based on the denial” of equal protection. Thompson v. Patteson, 985
F.2d 202, 207 (5th Cir. 1993). Perry has not alleged any improper motive by
the defendants.
The district court did not err in dismissing Perry’s complaint as frivolous
and for failure to state a claim. See Black, 134 F.3d at 733-34; Geiger, 404 F.3d
at 373; Samford, 562 F.3d at 678.
Perry’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous,
it is DISMISSED. See 5TH CIR. R. 42.2. Perry is informed that the dismissal
of this appeal as frivolous and the district court’s dismissal count as strikes for
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purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Perry is WARNED that once he accumulates three strikes, he may
not proceed IFP in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.
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