United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2007
Charles R. Fulbruge III
Clerk
No. 05-20770
Summary Calendar
JOHN W. MELTON,
Plaintiff-Appellant
v.
MS. LOCK, Unit Parole Officer; UNIT PAROLE OFFICER SMITH;
OFFICE OF INSPECTOR GENERAL; RISSIE OWENS, Presiding Officer
Texas Board of Pardon and Paroles; BRYAN COLLIER, TDCJ Parole
Division Director; LELAND HENSZEL; BRAD LIVINGSTON; U.G.I.
MCADAMS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3406
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
John W. Melton, Texas prisoner # 1168128, has filed a motion
for leave to proceed in forma pauperis (IFP) on appeal. The
district court denied Melton’s motion to appeal IFP and certified
that the appeal was not taken in good faith. By moving for IFP,
*
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this opinion should not be published and is not precedent except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. 05-20770
-2-
Melton is challenging the district court’s certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Melton does not address the district court’s denial of his
claim that he was denied access to courts. Accordingly, that
claim has been abandoned. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Moreover, there is
no reversible error resulting from the district court’s failure
to address Melton’s claims of the denial of medical care for
Hepatitis C, of the denial of dental care, and of administrative
retaliation as these claims were raised neither in Melton’s
original nor amended complaints, and Melton does not argue that
the attachment to his motion for appointment for counsel, wherein
those claims were raised, should have been construed by the
district court as an implicit motion to amend his complaint. See
FED. R. CIV. P. 7 and 15; cf. United States v. Riascos, 76 F.3d
93, 94 (5th Cir. 1996). The district court also did not err in
failing to address Melton’s claim of toxic exposure because, as
Melton conceded, the claim was unexhausted. See 42 U.S.C.
§ 1997e(a); Days v. Johnson, 322 F.3d 863, 866 (5th Cir. 2003).
Melton has shown no error by the district court in denying
his parole-related claims as Texas has not created a liberty
interest in parole that is protected by the Due Process Clause.
See Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995). Moreover,
allegations that the parole board considered unreliable
No. 05-20770
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information in making a parole determination, without more, does
not assert a federal constitutional violation. See Johnson v.
Rodriguez, 110 F.3d 299, 308-09 (5th Cir. 1997).
The district court did not err in denying Melton’s claims
that his constitutional rights were being violated because he was
being denied enough food for a person with a gastrointestinal
disease and because he was suffering from severe stomach cramps.
Even assuming, arguendo only, that Melton’s claims were not, as
the district court found, repetitive to claims raised in other
civil actions filed by Melton, Melton did not name any particular
defendant that was responsible for these alleged constitutional
violations. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th
Cir. 1992) (we may affirm “on any grounds supported by the
record”).
Melton has not shown that the district court’s determination
that his appeal would be frivolous was incorrect. The instant
appeal is without arguable merit and is thus frivolous.
Accordingly, Melton’s request for IFP status is denied, and his
appeal is dismissed. See Howard v. King, 707 F.2d 215, 219-220
(5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of this § 1983
suit by the district court and our dismissal of this appeal as
frivolous both count as strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). In
Melton v. Livingston, No. 06-20097, Melton was notified that he
accumulated one strike. Melton has therefore accumulated three
No. 05-20770
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strikes, and he is barred from proceeding IFP in any civil action
or appeal brought in a United States court unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.