Clarence Stephens v. Brad Livingston

Case: 14-11225 Document: 00513198833 Page: 1 Date Filed: 09/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
September 18, 2015
No. 14-11225 Lyle W. Cayce
Summary Calendar Clerk
CLARENCE STEPHENS,
Plaintiff-Appellant
v.
BRAD LIVINGSTON, Executive Director of Texas Department of Criminal
Justice; EDDIE L. WHEELER, Senior Warden of French M. Robertson Unit,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:14-CV-41
Before DAVIS, JONES and GRAVES, Circuit Judges.
PER CURIAM: *
Clarence Stephens, Texas prisoner # 782065, appeals from the dismissal
of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915A(b)(1). We review the dismissal de novo. Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11225
Stephens contends that he was denied due process in connection with his
early release from prison and contests the procedures involved in determining
his eligibility and suitability for parole. He maintains that the parole board,
which is statutorily required to reconsider the denial of parole, has suspended
his eligibility for parole. Stephens further argues that his prison classification,
which implicates his ability to earn good-time credits, and the outcome of his
unfairly conducted disciplinary hearings have adversely affected his eligibility
for parole.
While Stephens is eligible for parole, he has no protected liberty interest
in it and is precluded from attacking state parole procedures on due process
grounds. See Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir. 1997). We
otherwise may not review the propriety of the parole procedures set forth by
Texas law. See Swarthout v. Cooke, 562 U.S. 216, 220-22 (2011). To the extent
that Stephens alleges that his due-process rights are implicated by the adverse
effects of his prison classification on his consideration for release to parole, his
claim is unavailing because he has no protected liberty interest in his prison
classification. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). He
has not set forth any other punishment imposed in his disciplinary proceedings
that concerns a protected liberty interest. See Malchi v. Thaler, 211 F.3d 953,
958 (5th Cir. 2000). Because Stephens has not demonstrated an underlying
constitutional violation, he has not alleged a basis for supervisory liability. See
Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 (5th Cir. 2006).
Stephens argues for the first time on appeal that the state procedures
for early release violate separation-of-powers principles. We may not consider
new theories of review on appeal. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999). Stephens has abandoned his claim that he was
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No. 14-11225
denied equal protection. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
Stephens’s appeal lacks an arguable basis in law or fact, and, thus, it is
dismissed as frivolous. See 5TH CIR. R. 42.2. We recently imposed a bar under
28 U.S.C. § 1915(g) because Stephens has accumulated three strikes, but we
do not apply the bar in this case because he has not sought to proceed in forma
pauperis and has paid the necessary filing fee. See Stephens v. Abbott, 608 F.
App’x 305 (5th Cir. 2015). Nevertheless, we warn Stephens that future
frivolous, repetitive, or otherwise abusive filings will invite the imposition of
sanctions, which may include dismissal, monetary sanctions, and restrictions
on his ability to file pleadings in this court and any court subject to this court’s
jurisdiction. He also is warned that he should review any pending appeals and
actions and move to dismiss any that are frivolous or repetitive.
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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