# United States Court of Appeals **for the Fifth Circuit**

No. 21-10732 Summary Calendar

Keith Druzzel Kennebrew, Plaintiff—Appellant ,

versus Amarillo Parole Office; Charles Shipman; Anthony Ramirez, Defendants—Appellees

.

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:18-CV-39

Before Barksdale, Elrod, and Haynes, Circuit Judges

. Per Curiam: * Keith Druzzel Kennebrew, Texas state prisoner # 330114 and proceeding pro se , appeals: the dismissal wi th prejudice of his complaint under 42 U.S.C. § 1983 as frivolous; and the denial of his Federal Rule of

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 11, 2022

Lyle W. Cayce Clerk Case: 21-10732 Document: 00516429230 Page: 1 Date Filed: 08/11/2022No. 21-10732

2 Civil Procedure 59(e) motion for reconsideration. In his § 1983 complaint, Kennebrew claimed that his due-proces s and equal-protection rights were violated because defendants did not prop erly apply the Texas parole statutes to allow him to use earned good-ti me credits to seek early release. Kennebrew’s complaint was dismisse d as frivolous pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2), and 42 U.S.C. § 1997e(c)(1). Our court need not determine whether the appropriate standard of review of that dismissal is de novo or abuse of discretion because each standard produces the same result. E.g. , Morris v. McAllester , 702 F.3d 187, 189 (5th Cir. 2012) (noting court may decline to resolve st andard of review when appeal fails under both standards); Geiger v. Jowers , 404 F.3d 371, 373 (5th Cir. 2005). Regarding Kennebrew’s due-process cl aims, our court has held that Texas law does not create a liberty intere st in parole that is protected by the Due Process Clause. Johnson v. Rodriguez , 110 F.3d 299, 308 (5th Cir. 1997); Madison v. Parker , 104 F.3d 765, 768 (5th Cir. 1997); Orellana v. Kyle , 65 F.3d 29, 31–32 (5th Cir. 1995). Accordingl y, even if Kennebrew is eligible for parole, he has no right or constitutional expectancy to early release on parole “because parole is within the total an d unfettered discretion of the State [of Texas]”. Teague v. Quarterman , 482 F.3d 769, 774 (5th Cir. 2007). As for his conclusory equal-protection claim, Kennebrew has not presented any facts demonstrating that defendants “intentionally discriminated against him because of membership in a protected class” or that he was “intentionally treated diffe rently from others similarly situated and that there [wa]s no rational basi s for the difference in treatment”. Gibson v. Tex. Dep’t of Ins.—Div. of Workers’ Comp. , 700 F.3d 227, 238 (5th Cir. 2012) (citation omitted). Denial of a Rule 59(e) motion is re viewed for abuse of discretion. E.g. , Trevino v. City of Fort Worth , 944 F.3d 567, 570 (5th Cir. 2019). Kennebrew Case: 21-10732 Document: 00516429230 Page: 2 Date Filed: 08/11/2022No. 21-10732

3 does not contend the court should have granted his motion for reconsideration based upon “an intervening change in the controlling law” or that he presented “newly discov ered evidence that was previously unavailable”. Demahy v. Schwarz Pharma, Inc. , 702 F.3d 177, 182 (5th Cir. 2012). Moreover, he does not demo nstrate dismissal was based upon “a manifest error of law or fact”. Id

. The district court’s dismissal of Ke nnebrew’s complaint as frivolous counts as a strike under 28 U.S.C. § 1915(g). Coleman v. Tollefson , 575 U.S. 532, 537–40 (2015). Kennebrew is WARNED that if he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious ph ysical injury. 28 U.S.C. § 1915(g). AFFIRMED; SANCTION WARNING ISSUED

. Case: 21-10732 Document: 00516429230 Page: 3 Date Filed: 08/11/2022