Maldonado v. Collier ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2008
No. 07-20224
Summary Calendar Charles R. Fulbruge III
Clerk
RAYMUNDO MALDONADO,
Plaintiff-Appellant,
v.
BRYAN COLLIER; PAMELA WILLIAMS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-604
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Raymundo Maldonado, Texas prisoner #662281, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint in which he alleged that the
defendants improperly extended his initial parole eligibility date from November
1997 to May 2005. The district court found that Maldonado had failed to state
a claim recognized at law pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Maldonado contends that the defendants violated the Due Process Clause
and impinged on his vested liberty interest in a properly-calculated parole
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-20224
eligibility date. Texas has not created a constitutionally-protected liberty
interest in parole or in the procedures attendant to parole decisions. See Creel
v. Keene, 928 F.2d 707, 712 (5th Cir. 1991); Johnson v. Rodriguez, 110 F.3d 299,
305 (5th Cir. 1997); cf. Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). Thus,
to the extent that Maldonado seeks relief regarding alleged due process
violations resulting from the parole review process, the district court did not err
in denying his claim.
Maldonado additionally argues that the defendants violated the Equal
Protection Clause because similarly-situated prisoners have had their initial
parole eligibility dates calculated in consonance with the applicable Texas
statutes. However, beyond conclusory allegations that similar prisoners have
had their initial parole dates properly determined, Maldonado offers no specific
facts in support of his assertions and therefore has failed to state a claim under
the Equal Protection Clause. See Brinkmann v. Johnston, 793 F.2d 111, 113
(5th Cir. 1986) (plaintiff in § 1983 action must state specific facts, not merely
conclusory allegations, to support his claim); cf. Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (finding that plaintiff alleging equal protection claim
must show that he has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in
treatment).
Maldonado additionally suggests that the defendants violated the
Separation of Powers doctrine. This argument concerns actions involving state
branches of government. Thus, Maldonado has not stated established a federal
constitutional violation based on the Separation of Powers doctrine. See Sweezy
v. New Hampshire, 354 U.S. 234, 255 (1957).
The district court’s dismissal of Maldonado’s complaint for failure to state
a claim counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996). Maldonado is cautioned that if he
accumulates three strikes under § 1915(g), he may not proceed in forma pauperis
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No. 07-20224
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).
AFFIRMED; SANCTION WARNING ISSUED.
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