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Jones v. Stringfellow, 03-20780 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 03-20780 Visitors: 49
Filed: Dec. 08, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 9, 2003 Charles R. Fulbruge III Clerk No. 03-20780 Conference Calendar CLARENCE H. JONES, Plaintiff-Appellant, versus ALFRED M. STRINGFELLOW; NEILL HODGES, Senior Warden; CHRISTIAN MELTON CRAIN, Defendants-Appellees. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-CV-1246 - Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Ju
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 9, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-20780
                        Conference Calendar



CLARENCE H. JONES,

                                    Plaintiff-Appellant,

versus

ALFRED M. STRINGFELLOW; NEILL HODGES, Senior Warden;
CHRISTIAN MELTON CRAIN,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-03-CV-1246
                       --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Proceeding pro se and in forma pauperis (“IFP”),

Clarence H. Jones, Texas prisoner # 526716, appeals the district

court’s dismissal of his civil rights complaint as frivolous

pursuant to 28 U.S.C. § 1915A(b)(1).   Jones argues that the

district court erred in dismissing his complaint without

affording him an opportunity to amend the complaint.     He further

argues that he stated a claim under 42 U.S.C. § 1983 when he


     *
        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that this opinion should not be published and is not precedent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. 03-20780
                                -2-

alleged that he was deprived of his right to due process by the

decision of the Texas Department of Criminal Justice to implement

an unpublished rule that adversely affected his parole

eligibility, in violation of the Ex Post Facto Clause.

     Jones’ first argument is without merit.    Section 1915A

contains no requirement for giving notice to the plaintiff of

impending dismissal.   See 28 U.S.C. § 1915A; see also Martin

v. Scott, 
156 F.3d 578
, 580 n.2 (5th Cir. 1998).

     Jones’ next argument also lacks merit.    “To state a claim

under § 1983, a plaintiff must (1) allege a violation of rights

secured by the Constitution or laws of the United States and

(2) demonstrate that the alleged deprivation was committed by a

person acting under color of state law.”     Piotrowski v. City of

Houston, 
51 F.3d 512
, 515 (5th Cir. 1995).    Jones has not alleged

a deprivation of a constitutionally protected right.     See Madison

v. Parker, 
104 F.3d 765
, 767-68 (5th Cir. 1997) (a change in a

prisoner’s custodial classification does not affect a protectable

liberty interest); Jackson v. Cain, 
864 F.2d 1235
, 1248 n.3

(5th Cir. 1989) (a prisoner has no constitutional right to a

specific work assignment); Berry v. Brady, 
192 F.3d 504
, 508

(5th Cir. 1999) (lost or restricted visitation privileges do not

implicate any due process concerns); and Creel v. Keene, 
928 F.2d 707
, 711-12 (5th Cir. 1991) (a prisoner has no constitutionally

protected liberty interest in obtaining parole).    Because Jones

did not allege the deprivation of a constitutionally protected
                           No. 03-20780
                                -3-

right, the district court did not err in dismissing his complaint

as frivolous.   Accordingly, the judgment of the district court is

affirmed.

     The district court’s dismissal of the present case and this

court’s affirmance of the dismissal count as one strike against

Jones for purposes of 28 U.S.C. § 1915(g).    See Adepegba v.

Hammons, 
103 F.3d 383
, 387-88 (5th Cir. 1996).   Jones is warned

that, should he accumulate three strikes, he will be barred

from proceeding IFP 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.

Source:  CourtListener

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