IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-40166
Summary Calendar
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Douglas E. Mitchell,
Plaintiff/Appellant,
versus
Bob Owens, Chairman, Pardon &
Paroles Division,
Defendant/Appellee.
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Appeal from the United States District Court
For the Eastern District of Texas
(1:94-CV-666)
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(May 18, 1995)
Before JOHNSON, DUHÉ, and BENAVIDES, Circuit Judges.*
JOHNSON, Circuit Judge:
Texas prison inmate, acting pro se and in forma pauperis,
filed a civil rights action against the Chairman of the Texas
Board of Pardon and Paroles alleging that his constitutional
rights had been violated by the state's failure to grant him
parole. The district court dismissed suit as frivolous and
inmate appeals. Because the appeal is frivolous, it is
DISMISSED. See Loc.R. 42.2.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
I. FACTS AND PROCEDURAL HISTORY
Douglas E. Mitchell alleges that he has served the statutory
minimum required under Texas law for placement on parole. He
received an initial interview with a parole counselor, but
several months passed from the date of that interview without
Mitchell having received any notice of parole action. Hence,
Mitchell brought this action, pro se and in forma pauperis,
pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive
relief regarding his parole status.
The case was referred to a magistrate who determined that
inmates in the Texas prison system have no protected liberty
interest in being released on parole. Thus, the magistrate judge
recommended that Mitchell's action be dismissed as frivolous.
Mitchell objected to the Magistrate Judge's Report and
Recommendation. In those objections, Mitchell suggested that he
is seeking to be released on mandatory supervision rather than
parole. The district court rejected Mitchell's objections,
though, finding that Mitchell did not meet the criteria for
mandatory supervision. Hence, the district court adopted the
Magistrate Judge's recommendation and dismissed Mitchell's claims
as frivolous. Mitchell now appeals.
II. DISCUSSION
An in forma pauperis complaint may be dismissed as frivolous
pursuant to 28 U.S.C. § 1915(d) if it has no arguable basis in
law or fact. Denton v. Hernandez, 504 U.S. 25, ___, 112 S.Ct.
1728, 1733 (1992); Booker v. Koonce, 2 F.3d 114, 116 (5th Cir.
2
1993); Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir.
1992). In making these judgments, district courts are vested
with broad discretion and this Court will disturb such a
determination only for an abuse of that discretion. Green v.
McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
To recover under 42 U.S.C. § 1983, a plaintiff must prove
that he was deprived of a federal right. See Daniel v. Ferguson,
839 F.2d 1124, 1128 (5th Cir. 1988). The extent of a prisoner's
liberty interest in parole-release matters is defined by state
statute. See Gilbertson v. Texas Bd. of Pardons & Paroles, 993
F.2d 74, 75 (5th Cir. 1993). In Gilbertson, this Court held that
the Texas statute does not create a constitutionally-protected
interest in a tentative parole date or other parole-release
matters. Id.
Because the Texas statute does not create a constitutional
right in parole matters, Mitchell's arguments regarding his
eligibility for parole and the propriety of the Board's actions
do not implicate the denial of a federal right. See Id.; Tex.
Code Crim. Proc. Ann. art. 42.18 § West Supp. 1994). Thus, this
claim was properly dismissed as frivolous.1
III. CONCLUSION
The appeal is DISMISSED as frivolous. See Loc.R. 42.2.
1
This Court also concurs with the district court that
Mitchell has not met, or even alleged that he has met, the
criteria for release on mandatory supervision. Accordingly, this
complaint lacks any arguable basis in either fact or law and thus
was properly dismissed as frivolous.
3