     Case: 10-30596 Document: 00511368875 Page: 1 Date Filed: 02/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 2, 2011
                                     No. 10-30596
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOSEPH L. JAMES,

                                                   Plaintiff - Appellant

v.

LIEUTENANT HERTZOG; GARY MORE; DARRELL GUILLORY; ASSISTANT
WARDEN LABRAIN,

                                                   Defendants - Appellees


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                               USDC No. 1:10-CV-92


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Joseph L. James, Louisiana
prisoner #57434, instituted this action pursuant to 42 U.S.C. § 1983,
maintaining officials working in the Rapides Parish detention centers denied his
request to participate in a work-release program in violation of his constitutional
rights. He claims: denial of due process; discrimination in violation of his right




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-30596 Document: 00511368875 Page: 2 Date Filed: 02/02/2011

                                  No. 10-30596

to equal protection; and violation of the Eighth Amendment prohibition against
cruel and unusual punishment.
      The district court adopted the magistrate judge’s recommendation,
dismissing James’ complaint both as frivolous and for failure to state a claim
pursuant to 28 U.S.C. §§ 1915, 1915A. Because the dismissal referred to both
§ 1915 and § 1915A, it is reviewed de novo. See, e.g., Chambers v. Jeter, 247 F.
App’x 490, at *1, (5th Cir. 17 Aug. 2007).
      James’ denial-of-due-process contention in connection with the work-
release program is based on his claim he was not given opportunity to defend
himself against allegations of his disruptive behavior. A unilateral expectation
of receiving a privilege is insufficient; a prisoner must “have a legitimate claim
of entitlement to it”. Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50
(5th Cir. 1995) (internal citation and quotation marks omitted). Where a statute
grants the prison administration discretion, the government has conferred no
right on the inmate. Meachum v. Fano, 427 U.S. 215, 226-29 (1976). The work-
release program created under Louisiana law provides a sheriff with the
discretion to make the work-placement decision.        See L A. R EV. S TAT. A NN.
§ 15:711(A)-(B). Because this statute did not create an enforceable expectation
of placement in a work-release program, it did not create a liberty interest that
is entitled to due-process protection. See Sandin v. Conner, 515 U.S. 472, 480-81
(1995). Thus, James has failed to allege an arguable due-process claim. See
Welch v. Thompson, 20 F.3d 636, 638 (5th Cir. 1994).
      James further contends he was discriminated against because of his
homosexuality. To state an equal-protection claim, a § 1983 plaintiff must allege
a state actor intentionally discriminated against him because he was a member
of a protected class. Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999). The
Supreme Court has not recognized sexual orientation as a suspect class;
however, if the State violates the Equal Protection Clause by creating a
disadvantage for homosexuals, the State’s conduct must have a “rational

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                                   No. 10-30596

relationship to legitimate governmental aims”. Johnson v. Johnson, 385 F.3d
503, 532 (5th Cir. 2004) (internal citation omitted).
        The record does not reflect that James was denied participation in the
work-release program because of his sexual orientation. Rather, it shows the
denial was due to his disruptive behavior while working in another prison unit.
His preclusion served the rational and legitimate penological reason of
maintaining security and order in the prison. See Smith v. Bingham, 914 F.2d
740, 742 (5th Cir. 1990); see also Freeman v. Tex. Dept. of Criminal Justice, 369
F.3d 854, 863-64 (5th Cir. 2005). Thus, James has failed to state an equal-
protection claim based on sexual-orientation discrimination.
        Last, James contends that denying him the right to participate in a work-
release program based on erroneous information constituted cruel and unusual
punishment, in violation of the Eighth Amendment. “Punishment rises to the
level of cruel and unusual only if it involves an unnecessary and wanton
infliction of pain.” Talib v. Gilley, 138 F.3d 211, 214 (5th Cir. 1998) (internal
citations and quotation marks omitted). Needless to say, denial of the right to
participate in a work-release program falls far short of that. Therefore, he failed
to state an arguable Eighth Amendment claim.
        James’ appeal lacks any issue of arguable merit and is therefore frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his appeal
is dismissed as frivolous. See 5 TH C IR. R. 42.2. James is advised that the district
court’s dismissal of his complaint and our court’s dismissal of this appeal as
frivolous count as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). James is cautioned that if he
accumulates three strikes, he will no longer be allowed 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 § 1915(g),
(h).
        APPEAL DISMISSED; SANCTION WARNING ISSUED.

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