Hughes v. Owens

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 8, 2009
No. 08-50329
Summary Calendar Charles R. Fulbruge III
Clerk
MARK A. HUGHES,
Plaintiff-Appellant,
v.
RISSIE OWENS; DOUG DRETKE; GERALD GARRETT; ELVIS HIGHTOWER,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
No. 1:07-CV-133
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mark Hughes, Texas prisoner # 494140, appeals a summary judgment and
the dismissal of his 42 U.S.C. § 1983 complaint. He alleges that he was denied
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50329
due process because the parole board did not give serious consideration to his re-
quest for parole and failed to follow its own guidelines and legislative mandates
in denying him parole.
This court reviews a summary judgment de novo. Threadgill v. Prudential
Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998). Summary judgment is appro-
priate if the record discloses “that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” F ED. R.
C IV. P. 56(c).
The Due Process Clause is invoked only where state procedures imperil a
protected liberty or property interest. See Olim v. Wakinekona, 461 U.S. 238,
250-51 (1983). Texas law does not create a liberty interest in parole that is pro-
tected by the Due Process Clause, and Texas prisoners have no constitutional ex-
pectancy of release on parole. Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
1997); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995). It is “axiomatic that be-
cause Texas prisoners have no protected liberty interest in parole they cannot
mount a challenge against any state parole review procedure on procedural (or
substantive) Due Process grounds.” Johnson v. Rodriguez, 110 F.3d 299, 308
(5th Cir. 1997).
Hughes’s argument that the Texas legislature has recently enacted stat-
utes that limit the discretion of the parole board in making release decisions is
without merit. His reliance on Wilkinson v. Dotson, 544 U.S. 74 (2005), is mis-
placed. The Court did not hold that a prisoner’s challenge to state parole proce-
dures necessarily states a due process claim. See id. at 82. Although a prison-
er’s challenge to a state’s parole procedures may be brought under § 1983, the
prisoner must show that those procedures created a liberty or property interest
protected by the Due Process Clause. See, e.g, Grennier v. Frank, 453 F.3d 442,
444 (7th Cir. 2006). In addition, Hughes’s conclusional assertion that the actions
of the parole board are unconstitutionally arbitrary is insufficient to defeat
summary judgment. See Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir.
2
No. 08-50329
1996).
Hughes contends that the district court erred in granting summary judg-
ment on his separation-of-powers claim. Because “the concept of separation of
powers embodied in the United States Constitution is not mandatory in state
governments[,]” his argument is without merit. See Sweezy v. New Hampshire,
354 U.S. 234, 255 (1957).
The judgment is AFFIRMED. See Threadgill, 145 F.3d at 292; rule 56(c).
3