Rochell v. Barnett

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-60714 Summary Calendar __________________

ARVIN DALE ROCHELL,

Plaintiff-Appellant,

versus

EDDIE BARNETT,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:95-CV-190-B-A - - - - - - - - - - April 5, 1996 Before WIENER, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Arvin Dale Rochell, a state prisoner proceeding pro se and

in forma pauperis, appeals from the district court's dismissal of

his 42 U.S.C. § 1983 for failure to state a claim. Rochell

contends that appellee has violated his due process rights by

scheduling the annual review of Rochell's custody status on June

28, 1995, rather than on February 24, 1995, the one-year

anniversary of his arrival, as required by prison regulations and

Miss. Code Ann. § 47-5-103. The failure to hold a review of

Rochell's classification is not in the realm of the "atypical and

Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-60714 -2-

significant hardship" which would give rise to a protected

liberty interest requiring any particular procedures. Sandin v.

Conner, 115 S. Ct. 2293, 2301 (1995). Because Rochelle has not

alleged a deprivation of a constitutionally cognizable liberty

interest, his § 1983 action has no arguable basis in law.

Because his complaint is frivolous, the district court did not

abuse its discretion in failing to hold an evidentiary hearing.

Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994). Accordingly, it

is dismissed as frivolous. See 5th Cir. R. 42.2.

We caution Rochell that any additional frivolous appeals

filed by him or on his behalf will invite the imposition of

sanctions. To avoid sanctions, Rochell is further cautioned to

review any pending appeals to ensure that they do not raise

arguments that are frivolous because they have been previously

decided by this court.

APPEAL DISMISSED; SANCTION WARNING GIVEN.