Tamez v. Buentello , 80 F. App'x 933 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
November 14, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-40389
Summary Calendar
RAUL GARZA TAMEZ,
Plaintiff-Appellant,
versus
SAMMY BUENTELLO, BILL CHEATHAM;
WARDEN MOORE; CARL JEFFRIES,
Assistant Director of Programs Services;
FRANK HOKE, Acc to courts programer;
NOEL J. WINNER, Lieutenant,
Defendants-
Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CV-398
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Before SMITH, DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Raul Garza Tamez, Texas prisoner #718879, appeals from the dismissal of his 42 U.S.C. §
1983 action as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1), and
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
for failure to exhaust administrative remedies, pursuant to 42 U.S.C. § 1997e(a)(1). Tamez moves
to supplement the record on appeal; his motion to supplement is DENIED.
Tamez’s contentions arise from his allegedly erroneous classification as a member of the
Mexican Mafia prison gang. He alleges t hat his erroneous classification led to his confinement in
administrative segregation; his exclusion from the GRAD program for former gang members; and
denial of legal visits with other prisoners.
Tamez had no due process right to the removal of false information in his prison record.
Velasquez v. Woods, 329 F.3d 420, 421-22 (5th Cir. 2003). He had no liberty interest that was
violated by his placement in administrative segregation. Pichardo v. Kinker, 73 F.3d 612, 613 (5th
Cir. 1996). To the extent that classification as a gang member may have deprived Tamez of the
ability to advance in good-time earning capability, that did not give rise to a constitutional claim.
Malchi v. Thaler, 211 F.3d 953, 957, 959 (5th Cir. 2000).
Tamez’s exclusion from the GRAD pro gram did not inevitably affect the duration of his
sentence and therefore did not infringe on Tamez’s constitutional rights. See Sandin v. Conner, 515
U.S. 472, 484 (1995). Tamez’s contention that GRAD participants are required to waive their
privilege against self-incrimination is not ripe for judicial review. See Monk v. Huston, 340 F.3d 279,
282 (5th Cir. 2003).
Tamez had no right to legal assistance by other prisoners. Tighe v. Wall, 100 F.3d 41, 43 (5th
Cir. 1996). We need not address Tamez’s allegation that a pleading in another case was delayed due
to the denial of legal visits, as Tamez did not make that allegation in the district court. See Leverette
v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
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Tamez’s appeal is without arguable merit and is frivolous. Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The appeal therefore should be dismissed. 5TH CIR. R. 42.2. The district
court’s dismissal of the current case and this court’s dismissal of the appeal count as two strikes
against Tamez for purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Tamez previously had an action dismissed as frivolous. Tamez v. Zeller, No. H-98-
1069 (S.D. Tex. Mar. 17, 2000 & Jan. 25, 2000). Tamez has attained three-strike status. He may
not proceed in forma pauperis (IFP) in any civil action or appeal unless he “is under imminent danger
of serious physical injury.” 28 U.S.C. § 1915(g).
APPEAL DISMISSED. 5TH CIR. R. 42.2. MOTION TO SUPPLEMENT DENIED. 28
U.S.C. § 1915(g) SANCTION IMPOSED.
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