Gaona v. Erwin , 224 F. App'x 327 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 16, 2007
Charles R. Fulbruge III
Clerk
No. 06-10172
Summary Calendar
ASENCION GAONA,
Plaintiff-Appellant,
versus
M. C. ERWIN, IV; T. HENDRICK; BRUCE E. ZELLER,
Defendants-Apellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CV-180
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Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Asencion Gaona, Texas prisoner # 656950, filed an in forma
pauperis (IFP) action under 42 U.S.C. § 1983 against prison
officials alleging that they violated his rights under the Due
Process Clause. His claims arose from a prison disciplinary
proceeding that resulted in a change to his classification
status, the loss of his opportunity to seek parole, the loss of
his recreation and commissary privileges, and the confiscation of
money and office supplies from him. The district court
determined that Gaona’s claims were frivolous and that the
*
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this opinion should not be published and is not precedent except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. 06-10172
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complaint failed to state a claim upon which relief could be
granted.
According to Gaona, the complaint stated a nonfrivolous
claim for relief because it alleged that officials acting under
the color of state law deprived him of liberty and property
interests in violation of the Due Process Clause. He stresses
that the complaint asserted that prison officials deprived him of
his classification status, parole, and property. He also notes
that the district court failed to address his property claim.
The dismissal of a prisoner’s in forma pauperis (IFP)
complaint for failure to state a claim is reviewed de novo, and
the standard governing dismissals under Federal Rule of Civil
Procedure 12(b)(6) applies. Ruiz v. United States, 160 F.3d 273,
274-75 (5th Cir. 1998). The dismissal of an IFP complaint as
frivolous is typically reviewed for abuse of discretion; however,
where the district court also finds that the complaint fails to
state a claim, as here, it is reviewed de novo. Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005). The complaint is
frivolous where it “lacks an arguable basis in law or fact.” Id.Gaona’s claim that he was denied due process when his
classification status was changed is “indisputably meritless,” as
inmates do not have a protected liberty or property interest in
their custodial classification. See Harper v. Showers, 174 F.3d
716, 719 (5th Cir. 1999). Likewise, he has no due process claim
arising from the loss of an opportunity to seek parole. It is
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“entirely speculative” whether a Texas prisoner will obtain
release on parole because the decision is discretionary. Madison
v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Accordingly, the
loss of the opportunity to seek parole does not implicate the Due
Process Clause. See id. In addition, Gaona’s loss of
recreational and commissary privileges “[does] not represent the
type of atypical, significant deprivation in which a state might
create a liberty interest.” Id.The complaint also failed to state claim for the deprivation
of property without due process. Where a state provides an
adequate postdeprivation remedy for the confiscation of prisoner
property, an inmate does not have a cognizable claim under § 1983
for the loss of his property. Murphy v. Collins, 26 F.3d 541,
543-44 (5th Cir. 1994). The Texas tort of conversion is an
adequate postdeprivation remedy for the wrongful confiscation of
prisoner property. Id. at 543. Accordingly, Gaona’s property
claim is not actionable under § 1983. See id. at 543-44.
Gaona’s appeal is without arguable merit and is frivolous.
The appeal is dimissed. See 5TH CIR. R. 42.2. The district
court’s dismissal of Gaona’s action and this court’s dismissal of
his appeal each count as a strike against him for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). If he accumulates three strikes, he may no
longer proceed in forma pauperis in any civil action or appeal
filed while he is incarcerated or detained in any facility unless
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he is under imminent danger of serious physical injury. See
§ 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.