Barker v. Owens

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2008
No. 07-50956
Summary Calendar Charles R. Fulbruge III
Clerk
WAYNE ERNEST BARKER
Plaintiff-Appellant
v.
RISSIE OWENS, Chairwoman of the Texas Board of Pardons and Paroles;
LYNN RUZICKA, Parole Commissioner
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-94
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Wayne Ernest Barker, Texas prisoner # 900987, has appealed the
dismissal of his paid complaint against Rissie Owens, Chairman of the Texas
Board of Pardons and Parole (Board), and Texas Parole Commissioner Lynn
Ruzicka, challenging the Board’s decision not to consider Barker for parole under
the Texas Medically Recommended Intensive Supervision (MRIS) Statute, TEX.
GOV’T CODE ANN. § 508.146, and he requests that we expedite his appeal. The
motion to expedite the appeal is denied as moot.
*
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should not be published and is not precedent except under the limited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. 07-50956
To the extent that he has raised the issue on appeal, Barker’s contention
that defendants Owens and Ruzicka are not immune from monetary damages
is meritless. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989);
Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995). We agree with the district
court that Barker’s requests for declaratory and injunctive relief fail to state a
claim for relief under FED. R. CIV. P. 12(b)(6). As the decision whether to release
an inmate to MRIS is entirely within the Board’s discretion, Barker has no
constitutionally protected interest in release. See TEX. GOV’T CODE ANN.
§ 508.146; Allison v. Kyle, 66 F.3d 71, 73-74 (1995). Barker’s contention that the
Board deviated from the procedural requirements of § 508.146 does not allege
a constitutional violation because the “[m]ere failure to accord the procedural
protections called for by state law or regulation does not of itself amount to a
denial of due process.” Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995).
AFFIRMED; MOTION TO EXPEDITE APPEAL DENIED AS MOOT.
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