Julian Cruz v. Billye Forrest

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2009
No. 09-20266
Summary Calendar Charles R. Fulbruge III
Clerk
JULIAN CRUZ,
Plaintiff-Appellant
v.
Captain BILLYE J. FORREST; Lieutenant KESHA B. SMITH; Sergeant TAD
W. HOWARD; Sergeant KAREN M. HUNT; Assistant Warden GARY A.
HUNTER,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-3300
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Julian Cruz, Texas prisoner # 921505, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 suit pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii)
because it failed to state a claim recognized at law. Cruz argues that his
confinement to administrative segregation based upon his alleged involvement
in the Mexican Mafia violated his due process and equal protection rights.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-20266
In the absence of extraordinary circumstances, administrative segregation
does not impose an atypical and significant hardship required to trigger the
protections of the Due Process Clause. See Hernandez v. Velasquez, 522 F.3d
556, 562-64 (5th Cir. 2008); Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998);
Pichardo, 73 F.3d 612, 612-13 (5th Cir. 1996); Luken v Scott, 71 F.3d 192, 193
(5th Cir. 1995). Cruz has not demonstrated extraordinary circumstances in
connection with his administrative segregation. Cf. Wilkinson v. Austin, 545
U.S. 209, 214 (2005); Wilkerson v. Stalder, 329 F.3d 431, 433, 435-36 (5th Cir.
2003). Moreover, Cruz’s assertion that he might be monitored after his release
from prison as a potential domestic terrorist does not demonstrate that his due
process rights have been violated. “[S]peculative, collateral consequences of
prison administrative decisions do not create constitutionally protected liberty
interests.” See Luken, 71 F.3d at 193. In addition, Cruz’s assertions that state
prison rules were broken in connection with his placement in administrative
segregation do not state a constitutional claim. See Jackson v. Cain, 864 F.2d
1235, 1252 (5th Cir. 1989).
With respect to his equal protection claim, Cruz alleges that he was denied
notice and a hearing before being segregated because he was an alleged member
of the Mexican Mafia. Although he asserts that he has been treated differently
from other prisoners placed in administrative segregation, he does not offer
specific facts, other than those related to his own segregation, to support that
assertion. Moreover, even though he alleges that his prison records were
falsified to reflect that he received notice and a hearing before being segregated,
he offers nothing, other than his own conclusional assertion, to show that the
motive for such alleged falsification was due to the defendants’ discriminatory
intent towards prisoners alleged to be in the Mexican Mafia. A prisoner’s vague
and conclusory allegations that his equal protection rights have been violated
are insufficient to raise an equal protection claim. Pedraza v. Meyer, 919 F.2d
317, 318 n.1 (5th Cir. 1990).
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No. 09-20266
Cruz argues that the district court erred in dismissing his complaint
without first conducting an evidentiary hearing. As Cruz has not shown that he
could assert any viable claims if given an opportunity for additional factual
development, the district court did not err in dismissing the complaint without
conducting an evidentiary hearing. See Eason v. Thaler, 14 F.3d 8, 10 (5th Cir.
1994).
Cruz’s appeal lacks merit and is dismissed as frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983); 5 TH C IR. R. 42.2. The dismissal of this
appeal as frivolous and the district court’s dismissal of Cruz’s § 1983 suit
pursuant to § 1915(e)(2)(B)(i), (ii) count as two strikes for purposes of § 1915(g),
which places filing limits on in forma pauperis (IFP) prisoners who file frivolous
lawsuits and appeals. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). Cruz is advised 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; SANCTION WARNING ISSUED.
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