Trevino v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2004
• Docket: 03-41686
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS June 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41686 Conference Calendar

MICHAEL TAYLOR TREVINO,

Plaintiff-Appellant,

versus

GARY JOHNSON, Executive Director, Texas Department of Criminal Justice, Institutional Division; DAVID STACKS, Senior Warden; JOHNNY ENGLISH, Lieutenant; DAVID K. LIBBY, Correctional Officer,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:03-CV-149 --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael Taylor Trevino, Texas inmate # 684815, appeals from

the dismissal of his civil rights complaint, filed pursuant to 42

U.S.C. § 1983, as frivolous under 28 U.S.C. § 1915. Trevino’s

claim that his placement in administrative segregation violated

his procedural due process rights relies on a legally nonexistent

interest and is, therefore, frivolous. See Sandin v. Conner, 515

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41686 -2-

U.S. 472, 483-86 (1995); Harper v. Showers, 174 F.3d 716, 718

(5th Cir. 1999); see also 28 U.S.C. § 1915(e)(2)(B)(i).

Although Trevino also alleged that his placement in

administrative segregation violated his Eighth Amendment rights,

he has abandoned any such claim by failing to brief it

adequately. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).

Trevino’s racial profiling argument is construed as an equal

protection claim. See Royal v. Tombone, 141 F.3d 596, 599 n.4

(5th Cir. 1998). Because Trevino did not allege that similarly

situated individuals had been treated differently and because the

record shows that Trevino was placed in administrative

segregation following a fight in a crowded day room, this claim

is frivolous. See Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th

Cir. 1992). Trevino’s arguments that his placement in

administrative segregation violated prison policy and Texas law

against racial profiling do not state constitutional violations.

See Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986);

Giovanni v. Lynn, 48 F.3d 908, 912-13 (5th Cir. 1995). The

district court’s judgment is AFFIRMED.

The district court’s dismissal of Trevino’s complaint as

frivolous and this court’s affirmance count as a strike for

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 387-88 (5th Cir. 1996). Trevino is WARNED that if he

accumulates three strikes, he may not proceed IFP in any civil No. 03-41686 -3-

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; SANCTION WARNING ISSUED.