United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41686
Conference Calendar
MICHAEL TAYLOR TREVINO,
Plaintiff-Appellant,
versus
GARY JOHNSON, Executive Director, Texas Department
of Criminal Justice, Institutional Division; DAVID
STACKS, Senior Warden; JOHNNY ENGLISH, Lieutenant;
DAVID K. LIBBY, Correctional Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:03-CV-149
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Michael Taylor Trevino, Texas inmate # 684815, appeals from
the dismissal of his civil rights complaint, filed pursuant to 42
U.S.C. § 1983, as frivolous under 28 U.S.C. § 1915. Trevino’s
claim that his placement in administrative segregation violated
his procedural due process rights relies on a legally nonexistent
interest and is, therefore, frivolous. See Sandin v. Conner, 515
*
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this opinion should not be published and is not precedent except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. 03-41686
-2-
U.S. 472, 483-86 (1995); Harper v. Showers, 174 F.3d 716, 718
(5th Cir. 1999); see also 28 U.S.C. § 1915(e)(2)(B)(i).
Although Trevino also alleged that his placement in
administrative segregation violated his Eighth Amendment rights,
he has abandoned any such claim by failing to brief it
adequately. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
Trevino’s racial profiling argument is construed as an equal
protection claim. See Royal v. Tombone, 141 F.3d 596, 599 n.4
(5th Cir. 1998). Because Trevino did not allege that similarly
situated individuals had been treated differently and because the
record shows that Trevino was placed in administrative
segregation following a fight in a crowded day room, this claim
is frivolous. See Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th
Cir. 1992). Trevino’s arguments that his placement in
administrative segregation violated prison policy and Texas law
against racial profiling do not state constitutional violations.
See Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986);
Giovanni v. Lynn, 48 F.3d 908, 912-13 (5th Cir. 1995). The
district court’s judgment is AFFIRMED.
The district court’s dismissal of Trevino’s complaint as
frivolous and this court’s affirmance count as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Trevino is WARNED that if he
accumulates three strikes, he may not proceed IFP in any civil
No. 03-41686
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action or appeal filed while he is incarcerated or detained in
any facility unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.