UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-20291
(Summary Calendar)
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SCOTT PALMER,
Plaintiff - Appellant,
versus
JOHN WYETH; S O WOODS, JR; BILL G CHEATMAN;
VICTOR RODRIGUEZ; MELINDA BOZARTH,
Defendants - Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-97-CV-42)
November 9, 1998
Before EMILIO M. GARZA, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Scott Palmer, Texas prisoner #660844, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action against various
members of the Texas Board of Pardons and Paroles (“Board”). He
also appeals the district court’s denial of his motion for
appointment of counsel, his motion to proceed in forma pauperis on
appeal and his motion to recuse. We affirm.
*
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opinion should not be published and is not precedent except under the limited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.
I
Palmer alleges that when he was interviewed by John Wyeth for
the purpose of gathering information that one day would be used to
determine Palmer’s eligibility for parole, Wyeth inserted various
erroneous pieces of information into Palmer’s prison file. Palmer
further alleges that when he later was interviewed by an unnamed
parole counselor while in the prison psychiatric ward, the
counselor failed to ascertain the accuracy of Palmer’s file and to
correct the erroneous information that Wyeth had inserted into
Palmer’s file. Palmer asserts that as a result of the actions of
Wyeth and the unnamed prison counselor, the Board erroneously
refused to grant him parole. Palmer claims that all of these
actions violated due process. He seeks compensatory and punitive
damages.
II
The district court dismissed Palmer’s claims as frivolous
because (1) “an inmate does not have a federal constitutional right
to be released prior to the expiration date of his sentence” and
“there is no right to parole under Texas law,” (2) Palmer failed to
show “that the Board’s decision was declared invalid or otherwise
called into question” and (3) a petition for a writ of habeas
corpus, rather than a § 1983 suit, was the appropriate vehicle for
Palmer to “attack the result of a hearing concerning his release
date.” See 28 U.S.C. § 1915A (1997).1 The district court also
1
Section 1915A applies to prisoners, like Palmer, who have paid the
required filing fee. See Martin v. Scott, ___ F.3d ___, ___, 1998 WL 650992, at
*1 (5th Cir. 1998) (per curiam).
-2-
denied Palmer’s motion for appointment of counsel. See id. §
1915(e)(1) (1997). It then entered a final judgment. After filing
a notice of appeal, Palmer moved to proceed in forma pauperis on
appeal (“IFP motion”). See FED. R. APP. P. 24(a). He subsequently
sought recusal of the district court because of delays in rulings
on his IFP motion2 and his motion to compel a ruling on the IFP
motion, and because of the earlier rulings against him. See 28
U.S.C. §§ 144, 455 (1994).3 The district court denied the IFP
motion,4 the motion to compel a ruling on the IFP motion and the
motion to recuse. Palmer filed a second notice of appeal
challenging the denial of the IFP motion and the motion to recuse.5
III
We review the dismissal of Palmer’s claims as frivolous for
abuse of discretion. See Martin, ___ F.3d at ___, 1998 WL 650992,
at *1. “A complaint is frivolous if it lacks an arguable basis in
law or fact, such as when a prisoner alleges violations of a legal
2
When Palmer filed his motion to recuse, the IFP motion had been
pending for slightly more than two months. The district court had ruled on the
motion to compel a ruling on the IFP motion about a week before the motion to
recuse had been filed.
3
Palmer attached an affidavit to his motion to recuse in accordance
with 28 U.S.C. § 144.
4
The district court cited the frivolousness of Palmers’ claims as the
reason for denying the IFP motion. See Baugh v. Taylor, 117 F.3d 197, 202 n.21
(5th Cir. 1998) (“it often may suffice for the district court to incorporate by
reference its decision dismissing the prisoner’s complaint on the merits with or
without supplementation, as the trial court deems appropriate, to fully apprise
us of the reasons for its certification [that the appeal is not taken in good
faith].”).
5
The district court denied a second motion to proceed in forma
pauperis on appeal made after Palmer filed his second notice of appeal. Palmer
does not appeal this ruling.
-3-
interest that does not exist.” Id.
We find no abuse of discretion in the dismissal of Palmer’s
claims as frivolous. Palmer alleges that Wyeth inserted false
information into his prison file and that the Board erroneously
denied him parole because it relied on the false information
inserted into his file by Wyeth in violation of due process. As
Texas law creates no protected liberty interest in parole, see
Johnson v. Martinez, 110 F.3d 299, 308-09 & n.13 (5th Cir. 1997)
(rejecting Texas prisoner’s due process claim alleging “that the
Board considers unreliable or false information in making parole
determinations” because a prisoner possesses no liberty interest in
state parole procedures), cert. denied, ___ U.S. ___, 118 S. Ct.
559, 139 L. Ed. 2d 400 (1997), we conclude that the district court
did not abuse its discretion in dismissing Palmer’s claims as
frivolous.6
IV
We review the denial of Palmer’s motion for appointment of
counsel for abuse of discretion. See Pedraza v. Jones, 71 F.3d
194, 197 (5th Cir. 1997) (reviewing denial of motion for
appointment of counsel under predecessor statute).7 “There is no
6
We find no need to consider the other reasons given by the district
court for dismissing Palmer’s claims as frivolous))that Palmer failed to show
“that the Board’s decision was declared invalid or otherwise called into
question,” see Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372, 129
L. Ed. 2d 383 (1994), and that a petition for a writ of habeas corpus, rather
than a § 1983 suit, was the appropriate vehicle for Palmer to “attack the result
of a hearing concerning his release date,” see Davis v. Fetchel, 150 F.3d 486,
490 (5th Cir. 1998).
7
As the current appointment of counsel statute mirrors its
predecessor, we still adhere to the jurisprudence developed under its
predecessor. Compare 28 U.S.C. § 1915(e)(1) (“The court may request an attorney
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automatic right to the appointment of counsel in a section 1983
case. Furthermore, a district court is not required to appoint
counsel in the absence of ‘exceptional circumstances’ which are
dependent on the type and complexity of the case and the abilities
of the individual pursuing that case.” Cupit v. Jones, 835 F.2d
82, 86 (5th Cir. 1987) (decision under predecessor statute).
We find no abuse of discretion in the denial of Palmer’s
motion for appointment of counsel. This case did not involve
exceptional circumstances, and Palmer proved quite able to pursue
it. See Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989)
(finding no abuse of discretion where case was not complex and the
plaintiff, a prisoner, had been capable of self-representation).
We, therefore, hold that the district court did not abuse its
discretion in denying Palmer’s motion for appointment of counsel.
V
We reject Palmer’s appeal of the denial of his IFP motion.
This appeal is inappropriate. To challenge the denial of his IFP
motion, Palmer must file a motion to proceed in forma pauperis on
appeal, not an appeal, with us. See FED. R. APP. P. advisory
committee’s note; Baugh, 117 F.3d at 202; United States v.
Boutwell, 896 F.2d 884, 890 (5th Cir. 1990) (Gee, J.). Moreover,
even assuming that Palmer’s second notice of appeal is a motion to
proceed in forma pauperis on appeal, we deny it because Palmer’s
to represent any person unable to afford counsel.”) with id. § 1915(d) (1994)
(superseded) (“The court may request an attorney to represent any such person
unable to employ counsel . . . .”).
-5-
claims are frivolous.8 Cf. Jackson v. Dallas Police Dep’t, 811
F.2d 260, 261 (5th Cir. 1986) (granting motion to proceed in forma
pauperis on appeal because plaintiff presented a non-frivolous
appeal (i.e., the legal points were arguable on their merits)).
VI
We review the denial of Palmer’s motion to recuse for abuse of
discretion.9 See In re Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993)
(addressing recusal motion brought under § 455); United States v.
MMR Corp., 954 F.2d 1040, 1044 (5th Cir. 1992) (addressing recusal
motion brought under § 144). We find no abuse of discretion. The
district court was not required to recuse itself because of its
rulings against Palmer. See Hipp, 5 F.3d at 116 (“Adverse rulings
against the defendant in the same or a prior judicial proceeding do
not render the judge biased.”). Nor did its delay in ruling on
motions necessitate recusal. See Rafferty v. NYNEX Corp., 60 F.3d
844, 847-48 (D.C. Cir. 1995) (per curiam) (rejecting call for
recusal based on the mere fact of unfavorable rulings and delays in
ruling on motions); Loranger v. Stierheim, 10 F.3d 776, 781 (11th
Cir. 1994) (per curiam) (applying Fifth Circuit’s standard for
8
“[W]here the merits are so intertwined with the certification
decision as to constitute the same issue,” we may “determin[e] the merits of the
appeal as well as the appropriateness of [pauper] . . . status.” Baugh, 117 F.3d
at 202.
9
We agree with Palmer that 28 U.S.C. § 1291 provides us with
jurisdiction over the denial of his post-judgment motion to recuse. See Ohntrup
v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir. 1986) (holding order denying
counsel’s post-judgment motion to withdraw appealable under 28 U.S.C. § 1291);
15B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3916 (2d ed. 1992) (“The
finality requirement [to bring an appeal under § 1291] is met by orders entered
after final judgment, too late or too collateral to be reviewed effectively on
appeal from the final judgment, upon complete disposition of the post-judgment
proceeding.”).
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recusal under § 455 based on judicial remarks and rulings)(“Neither
the district judge’s delay, nor his adverse rulings, constitute the
sort of ‘pervasive bias’ that necessitates recusal.”); West v.
United States, 994 F.2d 510, 512 (8th Cir. 1993) (“While the delays
in ruling on the [petitioner’s] . . . section 2255 motion were
unfortunate, they do not evidence bias.”). We, therefore, conclude
that the district court did not abuse its discretion in denying
Palmer’s motion to recuse.
VII
We AFFIRM the dismissal of Palmer’s claims as frivolous, the
denial of Palmer’s motion for appointment of counsel and the denial
of Palmer’s motion to recuse, and DENY Palmer’s IFP motion.
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