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Ketzel v. Trevino, 01-10307 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-10307 Visitors: 5
Filed: Jun. 21, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-10307 Summary Calendar GARY NORMAN KETZEL, Plaintiff-Appellant, versus ROLDAN TREVINO, also known as S. Trevino; MIKE MORROW; WINDHAM INDEPENDENT SCHOOL DISTRICT, Defendants-Appellees. - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:00-CV-244 - June 18, 2001 Before JOLLY, SMITH, and DUHÉ, Circuit Judges. PER CURIAM:1 Gary Norman Ketzel, Texas prisoner # 743036, appeals the district cou
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-10307
                         Summary Calendar



                        GARY NORMAN KETZEL,

                                              Plaintiff-Appellant,

                                versus

 ROLDAN TREVINO, also known as S. Trevino; MIKE MORROW; WINDHAM
                  INDEPENDENT SCHOOL DISTRICT,

                                              Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 2:00-CV-244
                      --------------------
                          June 18, 2001

Before JOLLY, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:1

     Gary Norman Ketzel, Texas prisoner # 743036, appeals the

district court’s dismissal as frivolous of his pro se, in forma

pauperis (“IFP”) 42 U.S.C. § 1983 civil rights lawsuit.   He renews

his conclusional argument that the appellees violated his due

process rights when they suspended him from participating in a

continuing-education program.     The district court dismissed the

lawsuit based on its determination that Ketzel’s suspension did not

implicate any constitutional right.


     1
        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that this opinion should not be published and is not precedent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.
     His conclusional assertions notwithstanding, Ketzel has not

demonstrated that he had any protectable liberty interest in his

education courses, and his due process claim fails.       See Sandin v.

Conner, 
515 U.S. 472
, 484 (1995); Madison v. Parker, 
104 F.3d 765
,

767-68 (5th Cir. 1997); cf. Bulger v. U.S. Bureau of Prisons, 
65 F.3d 48
, 49 (5th Cir. 1995).            The fact that he paid for his

education does not alter this result, and Ketzel provides no

authority to the contrary.

     To the extent that Ketzel contends that he has a liberty

interest in the continued right to earn good-time credits through

participating in an educational program because it will increase

his eligibility for parole, his claim similarly fails.       See Malchi

v. Thaler, 
211 F.3d 953
, 957-59 (5th Cir. 2000).     His argument that

his suspension violated prison procedural rules is not cognizable

in a 42 U.S.C. § 1983 lawsuit.      See Johnson v. Dallas Indep. Sch.

Dist., 
38 F.3d 198
, 200 (5th Cir. 1994); see also Levitt v. Univ.

of Texas at El Paso, 
759 F.2d 1224
, 1230 (5th Cir. 1985).

     Because   Ketzel   has   not   demonstrated   any   constitutional

violation arising out of his suspension, his appeal is wholly

without merit, is frivolous, and is therefore DISMISSED.           See

Howard v. King, 
707 F.2d 215
, 219-20 (5th Cir. 1983); 5th Cir.

R. 42.2.   Both the district court’s dismissal of his complaint and

this court’s dismissal of this appeal count as “strikes” for

purposes of 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 
103 F.3d 383
, 385-87 (5th Cir. 1996).        Ketzel is CAUTIONED that if he

accumulates a third “strike” under 28 U.S.C. § 1915(g), he will not


                                    2
be able to proceed 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).

     APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.




                                3

Source:  CourtListener

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