Barker v. Owens

Full title: Wayne Ernest BARKER, Plaintiff-Appellant v. Rissie OWENS, Chairwoman of…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 8, 2008

277 F. App'x 482 (5th Cir. 2008)

Opinion

No. 07-50956 Summary Calendar.

May 8, 2008.

Wayne Ernest Barker, Rusk, TX. for Plaintiff-Appellant.

Allan Kennedy Cook, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas, USDC No. 1.-06-CV-94.

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Wayne Ernest Barker, Texas prisoner # 900987, has appealed the dismissal of his paid complaint against Rissie Owens, Chairman of the Texas Board of Pardons and Parole (Board), and Texas Parole Commissioner Lynn Ruzicka, challenging the Board's decision not to consider Barker for parole under the Texas Medically Recommended Intensive Supervision (MRIS) Statute, TEX. GOV'T CODE ANN. § 508.146, and he requests that we expedite his appeal. The motion to expedite the appeal is denied as moot.

To the extent that he has raised the issue on appeal, Barker's contention that defendants Owens and Ruzicka are not immune from monetary damages is meritless. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995). We agree with the district court that Barker's requests for declaratory and injunctive relief fail to state a claim for relief under FED. R.CIV.P. 12(b)(6). As the decision whether to release an inmate to MRIS is entirely within the Board's discretion, Barker has no constitutionally protected interest in release. See TEX. GOV'T CODE ANN. § 508.146; Allison v. Kyle, 66 F.3d 71, 73-74 (1995). Barker's contention that the Board deviated from the procedural requirements of § 508.146 does not allege a constitutional violation because the "[m]ere failure to accord the procedural protections called for by state law or regulation does not of itself amount to a denial of due process." Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995).

AFFIRMED; MOTION TO EXPEDITE APPEAL DENIED AS MOOT.