Sanders v. Smith

U.S. Court of Appeals for the Fifth Circuit
Sanders v. Smith, 111 F. App'x 752 (5th Cir. 2004)

Sanders v. Smith

Opinion

PER CURIAM: *

Melvin D. Sanders, Texas prisoner # 658952, appeals the dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim. Sanders argues that his continued incarceration, based on his refusal to participate as ordered in Texas’ Sex Offender Treatment Program (“SOTP”) violates his due process rights and the Self-Incrimination, Ex Post Facto, and Double Jeopardy Clauses.

To the extent Sanders is attacking the disciplinary convictions he received for refusing to participate in the SOTP, he has failed to identify a violation of a constitutional right. See McKune v. Lile, 536 U.S. 24, 35-37, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872-73 (5th Cir. 2001). 1 To the extent that he argues that his grant of parole was revoked and he remains incarcerated due to his refusal to participate in the SOTP, the claim should have been brought in habeas. See Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. *753 1827, 36 L.Ed.2d 439 (1973). Accordingly, the district court did not err in dismissing his complaint for failure to state a claim under 42 U.S.C. § 1983. See Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).

The district court’s dismissal of Sanders’s complaint and this court’s affirmance count as one “strike” for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Sanders 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).

AFFIRMED; SANCTIONS WARNING ISSUED.

*

Pursuant to 5th Cir. R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.

1

. As Sanders was not eligible for release on mandatory supervision, loss of good time credits does not implicate a protected liberty interest, see Kimbrell v. Cockrell, 311 F.3d 361, 362 (5th Cir. 2002); Malchi v. Thaler, 211 F.3d 953, 956-58 (5th Cir. 2000). Reduction in line-class status does not implicate due process concerns. Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).

Reference

Full Case Name
Melvin D. SANDERS, Plaintiff-Appellant, v. Audrey L. SMITH, Warden; Michael Moore, Captain; Geralyn A. Engman, Officer, Defendants-Appellees
Status
Unpublished