Leonard Bastida v. James LeBlanc ( 2010 )


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  •      Case: 09-30800     Document: 00511057023          Page: 1    Date Filed: 03/19/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    March 19, 2010
    No. 09-30800
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    LEONARD BASTIDA,
    Plaintiff - Appellant
    v.
    JAMES M LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY
    AND CORRECTIONS; C. A. LOWE, JR. Chairman, Board of Parole and
    Probation,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:09-CV-3546
    Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Leonard Bastida, Louisiana prisoner #086923, filed a civil rights complaint
    asserting that he was being denied parole in violation of his due process and
    equal protection rights. The district court dismissed Bastida’s complaint as
    frivolous and for failure to state a claim pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(i)
    and (ii).
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30800    Document: 00511057023 Page: 2        Date Filed: 03/19/2010
    No. 09-30800
    Bastida contends that he established a due process violation because the
    Louisiana statutes governing parole use language leading a prisoner to expect
    release upon satisfaction of the pertinent rules.      He also asserts that the
    Louisiana Board of Pardons and Paroles erred in denying his parole requests on
    the basis of “unchangeable” factors such as the nature of the underlying offense
    and Bastida’s criminal history, particularly in light of Bastida’s lengthy
    incarceration and evidence of his rehabilitative efforts. Bastida has pointed to
    no state laws using language mandating release, which would give rise to a
    constitutionally protected “expectation of parole.” Board of Pardons v. Allen, 
    482 U.S. 369
    , 373, 377-78 (1987). He thus has not established that his right to parole
    is protected by the Due Process Clause.
    Bastida also asserts that the denial of parole constituted a violation of the
    Equal Protection Clause. He maintains that officials in the Attorney General’s
    Office informed prison officials that defendants convicted of armed robbery were
    ineligible for parole under the “old timer” statute. See La. R.S. § 15:574.4(A)(4).
    He argues this decision created a class of individuals suffering discrimination.
    See Wottlin v. Fleming, 
    136 F.3d 1032
    , 1036-37 (5th Cir. 1998). Bastida admits
    that the prison removed the restriction and that many such offenders were then
    granted parole under the statute.         He therefore has not shown that a
    “governmental action . . . classifie[d] between two or more relevant persons or
    groups.” Johnson v. Rodriguez, 
    110 F.3d 299
    , 309 (5th Cir. 1997) (internal
    quotation marks and citation omitted).
    To the extent that Bastida is arguing that his continued denial of parole
    resulted in discrimination against a “class of one,” he has not established that
    he was treated differently as a result of “illegitimate animus or ill-will” or that
    the different treatment was intentional. See Shipp v. McMahon, 
    234 F.3d 907
    ,
    916 (5th Cir. 2000), overruled on other grounds, McClendon v. City of Columbia,
    
    305 F.3d 314
    , 328-29 (5th Cir. 2002) (en banc).
    2
    Case: 09-30800   Document: 00511057023 Page: 3        Date Filed: 03/19/2010
    No. 09-30800
    Bastida thus has not established that the district court erred in dismissing
    his Section 1983 lawsuit as frivolous or for failure to state a claim upon which
    relief could be granted. See Taylor v. Johnson, 
    257 F.3d 470
    , 472 (5th Cir. 2001);
    Black v. Warren, 
    134 F.3d 732
    , 734 (5th Cir. 1998). The judgment of the district
    court is thus affirmed. Bastida is informed that, upon our affirmance, the
    district court’s dismissal counts as one strike for purposes of Section 1915(g).
    See Adepegba v. Hammons, 
    103 F.3d 383
    , 387 (5th Cir. 1996).            Bastida is
    cautioned that if he accumulates three strikes, he will no longer be allowed to
    proceed in forma pauperis 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 
    28 U.S.C. § 1915
    (g).
    AFFIRMED; SANCTION WARNING ISSUED.
    3
    

Document Info

Docket Number: 09-30800

Judges: Higginbotham, Clement, Southwick

Filed Date: 3/19/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024