Case: 11-50426 Document: 00511716877 Page: 1 Date Filed: 01/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2012
No. 11-50426
Summary Calendar Lyle W. Cayce
Clerk
JOHN H. CONDITT,
Plaintiff-Appellant
v.
RISSIE OWENS, Chairman, Board of Pardons and Paroles; HOWARD
THRASHER, Parole Commissioner; ELVIS HIGHTOWER, Parole
Commissioner; DAVID GUTIERREZ, Board Member; MS. IRTEIMEH, Parole
Representative; RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; K.
SHEELY, Warden,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:10-CV-90
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
John H. Conditt, Texas prisoner # 1217751, filed a 42 U.S.C. § 1983
complaint alleging that parole review procedures in Texas violated his
constitutional rights. The district court granted the defendants’ Federal Rule
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-50426
of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted. We review the grant of a Rule 12(b)(6) motion de
novo. See Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir. 2011).
On appeal, Conditt repeats his argument the parole review procedures in
Texas violate his right to due process. We have long held that Texas prisoners
have no protected liberty interest in parole; as a result, Conditt can not raise a
procedural or substantive due process challenge to any state parole review
procedure. See Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). He also
argues that allowing wealthier prisoners to retain “parole consultants,” who
often are able to obtain more favorable review for their clients, results in an
equal protection violation. “A violation of the equal protection clause occurs only
when, inter alia, the governmental action in question classifies between two or
more relevant persons or groups.” Johnson, 110 F.3d at 309. Because the Texas
Board of Pardons and Paroles does not classify wealthy prisoners differently
from poor prisoners, Conditt has not established a valid equal protection claim.
See id.
Conditt also argues that the district court failed to address claims that a
prison official improperly seized some of his documentary evidence and that the
district court failed to address a request for class action status. Although
Conditt did allege that a prison mail room supervisor had seized some of his
documents, he never named this supervisor as a defendant. Conditt also failed
to make any attempt to establish that his complaint merited class action status
under Federal Rule of Civil Procedure 23; we also note that the dismissal of
Conditt’s complaint on its merits mooted any request for class certification. As
a result, we also deny his motions on appeal for class-action certification and
appointment of class-action counsel.
Finaly, Conditt states in his appellate brief that the district court did not
conduct an evidentiary hearing pursuant to Spears v. McCotter, 766 F.2d 179,
181-82 (5th Cir. 1985). Even if we assume that Conditt intended to argue that
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No. 11-50426
the district court erred by not holding such a hearing, Conditt has not presented
any argument to show that the district court erred. Moreover, because his
complaint was legally meritless, there was no prejudice arising from the lack of
a Spears hearing. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
AFFIRMED; MOTIONS DENIED.
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