United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT June 12, 2007
Charles R. Fulbruge III
Clerk
No. 06-50217
Summary Calendar
GREGORY LAWRENCE MOORE,
Plaintiff-Appellant,
versus
RISSIE OWENS; JOSE ALISEDA; CHARLES AYCOCK; JACKIE DONOYELLES;
LINDA GARCIA; JUANITA M. GONZALEZ; ELVIS HIGHTOWER; PAMELA D.
FREEMAN; JANE DOES, All Future Members and Commissioners of the
Texas Board of Pardons and Paroles; JOHN DOES, All Future Members
and Commissioners of the Texas Board of Pardons and Paroles,
Defendants-Appellees.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:05-CV-418
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Before JOLLY, DENNIS, CLEMENT, Circuit Judges.
PER CURIAM:*
Gregory Lawrence Moore, Texas prisoner # 799979, is serving
a 30-year sentence for aggravated sexual assault of a child, an
offense he committed in June 1989, and a consecutive 20-year
sentence for failure to appear, an offense committed in January
1997. He filed an action under 42 U.S.C. § 1983 in which he
raised numerous claims concerning the actions and omissions of
the Texas Board of Pardons and Paroles (TBPP). The district
*
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this opinion should not be published and is not precedent except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. 06-50217
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court determined that Moore had pleaded both habeas claims and
civil rights claims. It dismissed the former without prejudice
to file an application for habeas relief in the appropriate
court, and it dismissed the latter, also without prejudice, for
failure to state a claim on which relief could be granted. This
appeal followed.
We review de novo the district court’s dismissal for failure
to state a claim on which relief can be granted. See Praylor v.
Texas Dep’t of Crim. Justice, 430 F.3d 1208, 1209 (5th Cir.
2005). This court must assume that all of the plaintiff’s
factual allegations are true, and “[t]he district court’s
dismissal may be upheld, only if it appears that no relief could
be granted under any set of facts that could be proven consistent
with the allegations.” Hart v. Hairston, 343 F.3d 762, 764 (5th
Cir. 2003) (citations and internal quotation marks omitted).
Moore argues that the district court erred in dismissing his
claim that his Fifth Amendment right against compelled self
incrimination was violated at his parole interview. He contends
that his refusal to answer questions about his past uncharged
crimes will diminish his chances of being granted parole. We
affirm the district court’s dismissal of this claim because a
voluntary parole interview under the circumstances described by
Moore does not does not violate the privilege against self-
incrimination. See Ohio Adult Parole Authority v. Woodard,
523 U.S. 272, 286-88 (1998).
No. 06-50217
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Moore argues that the district court erred in dismissing his
ex post facto claim. He asserts that, in September 1997, the
TBPP changed its rules regarding the calculation of eligibility
dates for parole where prisoners are serving consecutive
sentences, to his detriment.
We are aware that, in 1997, the Texas Department of Criminal
Justice and the TBPP determined that time calculations for
consecutively-sentenced inmates required re-evaluation for
offenses committed after 1987, and that the practice of treating
cumulative sentences as a single combined sentence was
discontinued. See Ex parte Kuester, 21 S.W.3d 264, 265 (Tex.
Crim. App. 2000) (footnotes omitted), overruled on other grounds,
Ex parte Hale, 117 S.W.3d 866, 872 n.27 (Tex. Crim. App. 2003).
Given this change, which occurred after the commission of Moore’s
offenses, we are not prepared to say that “no relief could be
granted under any set of facts that could be proven consistent
with [Moore’s] allegations.” Hart, 343 F.3d at 764 (citations
and internal quotation marks omitted). Accordingly, while
expressing no opinion on the merits of Moore’s ex post facto
claim, we vacate its dismissal and remand the claim to the
district court for further proceedings.
Moore also contends that the district court erred in
dismissing several claims for relief, which he labels “separation
of powers” claims. Moore bases his argument regarding these
claims exclusively on alleged violations of Texas state law.
No. 06-50217
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However, “violation of state law alone does not give rise to a
cause of action under § 1983.” Williams v. Treen, 671 F.2d 892,
900 (5th Cir. 1982); see Moore v. Willis Indep. Sch. Dist.,
233 F.3d 871, 874 (5th Cir. 2000). Moore has failed to show
error in the dismissal of his “separation of powers” claims, and
their dismissal is affirmed.
Moore has waived the remainder of the substantive claims
presented in the district court by failing to raise them on
appeal. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Moore argues that the district court erred in its
determination that it would be improper, if he prevailed on a
civil rights claim, to grant a declaratory judgment. Because
none of Moore’s § 1983 claims have been adjudicated in his favor,
we decline to address whether a declaratory judgment would be
appropriate.
Moore has also moved for the appointment of counsel.
Because Moore has not demonstrated that his case involves
exceptional circumstances, his motion is denied. See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION
DENIED.