Espinoza v. Benoit , 108 F. App'x 869 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40255
Conference Calendar
RUBEN ESPINOZA,
Plaintiff-Appellant,
versus
EDMUND BENOIT, Major; LYNN SMITH, Warden; MICHAEL MOORE,
Disciplinary Captain; CONNIE HUNTER, Grievance Investigator;
BRENDA TRAHAN, Substitute Counsel; PEDRO SOTO, Unit
Classification Officer; KELLI WARD, Step II Grievance
Coordinator,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-61
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Ruben Espinoza, Texas prisoner # 866201, appeals the
district court’s dismissal of his civil rights action as
frivolous and for failure to state a claim. See 28 U.S.C.
§ 1915(e)(2)(B). Espinoza sued the defendants pursuant to 42
U.S.C. §§ 1983, 1985(3), and 1986. He asserted constitutional
violations arising from his conviction in a disciplinary
*
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this opinion should not be published and is not precedent except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. 04-40255
-2-
proceeding for threatening an officer. The charge subsequently
was expunged, and Espinoza’s good-time credits were restored.
On appeal, Espinoza argues that the appellees conspired and
discriminated against him because he is Hispanic and that he was
placed in close custody confinement in retaliation for exercising
his right of access to the courts. These assertions are
conclusional and will not support a constitutional claim. See
Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Espinoza has not stated a constitutional claim with respect
to his confinement in close custody because such confinement does
not constitute an “atypical and significant hardship . . . in
relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995). Espinoza does not have a
protected liberty or property interest in his custodial
classification. See Wilson v. Budney, 976 F.2d 957, 958 (5th
Cir. 1992).
Espinoza argues that his due process rights were violated
because the charge against him was not adequately investigated
and that he was punished despite the absence of evidence to
support the charge. Because Espinoza’s good-time credits have
been restored, he has not identified the loss of a protected
liberty interest. Therefore, he cannot state a due process
claim. See Sandin, 515 U.S. at 484; Malchi v. Thaler, 211 F.3d
953, 959 (5th Cir. 2000). Even if Espinoza had a protected
liberty interest, his due process claim would be frivolous
No. 04-40255
-3-
because there was some evidence in the record to support the
disciplinary hearing officer’s finding of guilt. See
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445,
455-56 (1985).
Espinoza’s appeal is without arguable merit and is dismissed
as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2. The district court’s dismissal of the
complaint and the dismissal of this appeal as frivolous both
count as “strikes” under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Espinoza is
cautioned that if he accumulates three “strikes,” he will not be
able to proceed in forma pauperis in any civil action or appeal
filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See 28
U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.