United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 28, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-11294
Summary Calendar
WILLIE J. NELSON,
Plaintiff-Appellant,
versus
A. STRANG,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CV-206
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Willie J. Nelson, Texas prisoner # 690228, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint under
28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a
claim. He contends that defendant Strang forged Nelson’s signature
on a parole plan and falsely stated that he had contacted Nelson’s
sister in conjunction with that plan, which resulted in his being
*
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this opinion should not be published and is not precedent except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.
denied parole in 1999 in violation of the Eighth and Fourteenth
Amendments.1
Nelson’s allegation of cruel and unusual punishment resulting
from having to serve an extended sentence after his 1999 parole
denial does not establish a violation of his Eighth Amendment
rights.2 Moreover, “[t]he protections of the Due Process Clause
are only invoked when State procedures which may produce erroneous
or unreliable results imperil a protected liberty or property
interest.”3 We have previously held that “Texas prisoners have no
protected liberty interest in parole,” and therefore “they cannot
mount a challenge against any state parole review procedure on
procedural (or substantive) Due Process grounds.”4 Although Nelson
argues that he was entitled to a full and fair parole hearing and
that Strang violated this right by forging Nelson’s signature on
the parole plan and lying about contacting Nelson’s sister,
1
In his brief, Nelson also alleges that this constituted a
denial of his Fifth Amendment rights. However, in his complaint
filed in the district court Nelson alleged only a violation of his
Eighth and Fourteenth Amendment rights, so we address only those
claims on appeal. Stokes v. Emerson Elec. Co., 217 F.3d 353, 358
n.19 (5th Cir. 2000) (holding that arguments not raised in the
district court cannot be asserted for the first time on appeal).
2
See Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995)
(holding that an Eighth Amendment violation occurs only where a
condition of confinement is “so serious as to ‘deprive prisoners of
the minimal civilized measure of life’s necessities,’” and the
prison official responsible was “‘deliberately indifferent’ to
inmate health or safety”).
3
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).
4
Id.
2
“allegations that the Board considers unreliable or even false
information in making parole determinations, without more, simply
do not assert a federal constitutional violation”; “[r]ather, such
concerns are matters for the responsible state agencies and it is
to those bodies that grievances concerning parole procedures should
be addressed.”5
Nelson’s appeal is without arguable merit and is thus
frivolous.6 Accordingly, we DISMISS Nelson’s appeal as frivolous.7
This dismissal of his appeal as frivolous and the district court’s
dismissal of his complaint as frivolous and for failure to state a
claim upon which relief can be granted constitute two “strikes” for
the purposes of 28 U.S.C. § 1915(g).8 If Nelson obtains three
“strikes,” he will not be able to proceed in forma pauperis 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.9
5
Id. at 308-09.
6
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
7
See 5TH CIR. R. 42.2.
8
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
9
28 U.S.C. § 1915(g).
3