     Case: 09-30800     Document: 00511057023          Page: 1    Date Filed: 03/19/2010




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

                                                  FILED
                                                                           March 19, 2010
                                     No. 09-30800
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

LEONARD BASTIDA,

                                                   Plaintiff - Appellant

v.

JAMES M LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS; C. A. LOWE, JR. Chairman, Board of Parole and
Probation,

                                                   Defendants - Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-3546


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Leonard Bastida, Louisiana prisoner #086923, filed a civil rights complaint
asserting that he was being denied parole in violation of his due process and
equal protection rights. The district court dismissed Bastida’s complaint as
frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
and (ii).



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30800    Document: 00511057023 Page: 2        Date Filed: 03/19/2010
                                 No. 09-30800

      Bastida contends that he established a due process violation because the
Louisiana statutes governing parole use language leading a prisoner to expect
release upon satisfaction of the pertinent rules.      He also asserts that the
Louisiana Board of Pardons and Paroles erred in denying his parole requests on
the basis of “unchangeable” factors such as the nature of the underlying offense
and Bastida’s criminal history, particularly in light of Bastida’s lengthy
incarceration and evidence of his rehabilitative efforts. Bastida has pointed to
no state laws using language mandating release, which would give rise to a
constitutionally protected “expectation of parole.” Board of Pardons v. Allen, 482
U.S. 369, 373, 377-78 (1987). He thus has not established that his right to parole
is protected by the Due Process Clause.
      Bastida also asserts that the denial of parole constituted a violation of the
Equal Protection Clause. He maintains that officials in the Attorney General’s
Office informed prison officials that defendants convicted of armed robbery were
ineligible for parole under the “old timer” statute. See La. R.S. § 15:574.4(A)(4).
He argues this decision created a class of individuals suffering discrimination.
See Wottlin v. Fleming, 136 F.3d 1032, 1036-37 (5th Cir. 1998). Bastida admits
that the prison removed the restriction and that many such offenders were then
granted parole under the statute.         He therefore has not shown that a
“governmental action . . . classifie[d] between two or more relevant persons or
groups.” Johnson v. Rodriguez, 110 F.3d 299, 309 (5th Cir. 1997) (internal
quotation marks and citation omitted).
      To the extent that Bastida is arguing that his continued denial of parole
resulted in discrimination against a “class of one,” he has not established that
he was treated differently as a result of “illegitimate animus or ill-will” or that
the different treatment was intentional. See Shipp v. McMahon, 234 F.3d 907,
916 (5th Cir. 2000), overruled on other grounds, McClendon v. City of Columbia,
305 F.3d 314, 328-29 (5th Cir. 2002) (en banc).



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   Case: 09-30800   Document: 00511057023 Page: 3        Date Filed: 03/19/2010
                                No. 09-30800

      Bastida thus has not established that the district court erred in dismissing
his Section 1983 lawsuit as frivolous or for failure to state a claim upon which
relief could be granted. See Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001);
Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). The judgment of the district
court is thus affirmed. Bastida is informed that, upon our affirmance, the
district court’s dismissal counts as one strike for purposes of Section 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).            Bastida is
cautioned that if he accumulates three strikes, he will no longer be allowed to
proceed in forma pauperis in any civil action or appeal filed while he is detained
or incarcerated in any facility unless he is in imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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