IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2009
No. 08-20834
Summary Calendar Charles R. Fulbruge III
Clerk
GUADALUPE M GUAJARDO, JR
Plaintiff-Appellant
v.
MR BAYDA, Ellis Unit Parole Interviewer, Texas Department of Criminal
Justice-Correctional Institutions Division, Texas Board of Pardons and Paroles
Division; MR DRETKE, Ellis Unit Upholstery Supervisor Bus Repair - Texas
Department of Criminal Justice - Correctional Institution Division - Texas
Correctional Industrial Division
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-3592
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Guadalupe M. Guajardo, Texas prisoner # 170864, appeals the dismissal,
as frivolous and for failure to state a claim, of his civil rights action. He first
contends that the district court did not give liberal construction to his pro se
complaint. Guajardo’s pleadings are entitled to the benefit of liberal
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20834
construction.1 However, Guajardo has failed to show that the district court did
not properly construe his complaint.
Guajardo argues that his rights under the Due Process Clause were
violated by the actions of defendants Bayda and Dretke, which resulted in his
being denied a Unit Parole Interview. Guajardo concedes that Texas statutes
do not provide for a Unit Parole Interview, but he contends that such an
interview, in practice, is an essential part of the parole process and that he
therefore has a protected liberty interest in an interview. Texas law does not
create a liberty interest in parole that is protected by the Due Process Clause.2
Thus, even if Texas law or policy was violated by the lack of a Unit Parole
Interview, there was no violation of the federal Due Process Clause.3
Guajardo has failed to brief his claims that the lack of a Unit Parole
Interview violated the Equal Protection Clause and the Sixth Amendment.
Accordingly, he has waived these claims.4 (And these claims had no merit from
the start, for essentially the reasons provided by the district court.)
Guajardo also claims that his due process rights were violated in
connection with a disciplinary conviction. He argues that Dretke made
disciplinary charges against him based on an “assumption” that violations had
1
See Morrow v. FBI, 2 F.3d 642, 643 n.2 (5th Cir. 1993).
2
See Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).
3
See id. (“It follows that because [petitioner] has no liberty interest in
obtaining parole in Texas, he cannot complain of the constitutionality of
procedural devices attendant to parole decisions.”); see also Gerhart v. Hayes,
201 F.3d 646, 650 (5th Cir. 2000) (stating that “[t]he fundamental issue in due
process law is not whether state officials violated state law, but whether they
provided the plaintiff with constitutional minima”).
4
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (explaining that
even pro se appellants must brief their arguments to avoid waiver).
2
No. 08-20834
occurred. Guajardo asserts that there was no evidence to support the
disciplinary conviction.
The Due Process Clause “does not protect every change in the conditions
of confinement which has a substantial adverse effect upon a prisoner.” 5 Here,
the punishments received by Guajardo as a result of his disciplinary conviction
– demotion in trustee status, 15 days in solitary confinement, and 30 days of
commissary and cell restrictions – “are penalties which do not represent the type
of atypical, significant deprivation in which a state might create a liberty
interest.” 6 Guajardo has failed to show that his due process rights were
implicated by his disciplinary conviction. Moreover, Guajardo’s claim for
damages and for declaratory relief are barred under Heck v. Humphey,7 because
they necessarily imply the invalidity of the punishment imposed in the
disciplinary conviction.8 As Guajardo has failed to show error, the judgment of
the district court is affirmed.
The dismissal by the district court of Guajardo’s action as frivolous and for
failure to state a claim counts as a strike for the purpose of 28 U.S.C. § 1915(g).9
Guajardo has previously accumulated at least two strikes.10 Guajardo is
therefore barred from again proceeding in forma pauperis pursuant to § 1915
5
Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997) (citation omitted).
6
See id. at 768.
7
512 U.S. 477 (1994).
8
See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997).
9
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
10
See Guajardo v. Crain, 275 F. App’x 290, 291-92 (5th Cir. 2008)
(“Guajardo’s appeal is without arguable merit and is thus frivolous. . . . This
dismissal of his appeal as frivolous and the district court’s dismissal of his
complaint as frivolous constitute two strikes for the purposes of 28 U.S.C. §
1915(g).”).
3
No. 08-20834
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury.
AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.
4