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Carrio v. TDCJ Inst Division, 05-20189 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 05-20189 Visitors: 15
Filed: Aug. 23, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT August 23, 2006 Charles R. Fulbruge III Clerk No. 05-20189 Summary Calendar NORMAN E. CARRIO, Plaintiff-Appellant, versus TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; TEXAS BOARD OF PARDON & PAROLE; R. THALER; W. JENNINGS; S. HUBBARD; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; GUARD BURROWS; BYRD; C. POPP; E. ROBBINS, Defendants-Appellees. Appeal from the United States District Court f
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                    August 23, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-20189
                          Summary Calendar



                         NORMAN E. CARRIO,

                                                Plaintiff-Appellant,

                               versus

                TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               INSTITUTIONAL DIVISION; TEXAS BOARD OF
              PARDON & PAROLE; R. THALER; W. JENNINGS;
         S. HUBBARD; TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
              GUARD BURROWS; BYRD; C. POPP; E. ROBBINS,

                                               Defendants-Appellees.


            Appeal from the United States District Court
                 for the Southern District of Texas
                           (4:03-CV-1505)


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Norman E. Carrio, Texas prisoner # 355695, was convicted of

murder in 1983 and sentenced to 60 years imprisonment. He appeals,

pro se, the 28 U.S.C. § 1915A dismissal, as frivolous, of his 42

U.S.C. § 1983 action.   Even under pro se standards, his brief is

essentially undecipherable.   He claims:     the confiscation of his



     *
       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.
legal materials as a result of his exceeding the amount of personal

property permitted under the prison storage policy violated his

right of access to the courts and was undertaken in retaliation for

his having testified against an officer in 1995; the confiscation

of his religious property violated his First Amendment rights and

the Religious Land Use and Institutionalized Persons Act of 2000,

28 U.S.C. § 2000cc, (RLUIPA); and has been wrongfully denied parole

and   work-time     credits.          The     district    court’s     dismissal,   as

frivolous, is reviewed for abuse of discretion.                  Martin v. Scott,

156 F.3d 578
, 580 (5th Cir. 1998), cert. denied, 
527 U.S. 1041
(1999).

      Carrio     does    not   renew    his     claim    that   the   confiscations

resulting from the change in prison property-storage procedures

violated his due-process rights; therefore, it is waived.                          See

Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993). If Carrio

is raising an ex post facto claim concerning the change in Parole

Board voting procedures after he began serving his sentence, he

fails to adequately brief it, even under the liberal standards

applied to pro se briefs.         E.g., Price v. Digital Equipment Corp.,

846 F.2d 1026
,       1028   (5th    Cir.    1988)     (“Although    we   liberally

construe the briefs of pro se appellants ... we also require that

arguments must be briefed to be preserved.”) Therefore, it is

waived.    
Id. Construing his
brief liberally, Carrio maintains, for the

first time on appeal:           his legal materials were confiscated in
retaliation for his having provided other inmates with legal

assistance;    and   the   confiscation    of   his   religious   materials

violated his equal-protection rights because he was discriminated

against as a Catholic, when Muslim and Jewish inmates are provided

more allowances for their faith.           These new claims will not be

considered.    See 
id. at 225
(“[T]his Court does not review issues

raised for the first time on appeal”.).

     Carrio’s denial-of-access claim lacks merit because he has not

shown how his position as a litigant has been prejudiced as a

result of the confiscations.          See McDonald v. Steward, 
132 F.3d 225
, 230-31 (5th Cir. 1998). His retaliation claim similarly lacks

merit   because    he   has   not   presented   any   direct   evidence   of

retaliatory motivation, nor has he alleged a chronology of events

from which retaliatory may be plausibly inferred.              See Woods v.

Smith, 
60 F.3d 1161
, 1166 (5th Cir. 1995), cert. denied, 
516 U.S. 1084
(1996).      The claim is based on no more than his subjective

beliefs and, therefore was properly dismissed.             See Johnson v.

Rodriguez, 
110 F.3d 299
, 310 (5th Cir.), cert. denied, 
522 U.S. 995
(1997).

     Carrio’s claimed denial of his First Amendment right to free

exercise of his religion when prison officials enforced a new

prison storage policy was also properly dismissed because the

storage policy is reasonably related to legitimate penological

interests.    See Turner v. Safley, 
482 U.S. 78
, 89 (1987); see also

Yohey, 985 F.2d at 224-25
.          The RLUIPA claim is likewise without
merit because Carrio has not demonstrated that the storage policy

has substantially burdened his religious exercise. 42 U.S.C. §

2000cc-1; see Adkins v. Kaspar, 
393 F.3d 559
, 570-71 (5th Cir.

2004), cert. denied, 
125 S. Ct. 2549
(2005).

     Because Carrio, as a Texas prisoner, has no liberty interest

in parole, his claim that he has been wrongfully denied parole is

not cognizable.   Orellana v. Kyle, 
65 F.3d 29
, 31-32 (5th Cir.

1995), cert. denied, 
516 U.S. 1059
(1996).   Carrio has not provided

authority for the proposition that the Constitution guarantees

credit for time worked in prison.   Thus, his claim that he is being

denied work-time credits is also without merit.      See Johnson v.

Dallas Indep. Sch. Dist., 
38 F.3d 198
, 200 (5th Cir. 1994), cert.

denied, 
514 U.S. 1017
(1995).

     The motions for oral argument and to advance on the docket are

DENIED.

                                        AFFIRMED; MOTIONS DENIED

Source:  CourtListener

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