IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30596

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

February 2, 2011

Lyle W. Cayce

Clerk

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.

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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 workrelease 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 workrelease program created under Louisiana law provides a sheriff with the

discretion to make the work-placement decision. See LA. REV. STAT. ANN.

§ 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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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 equalprotection claim based on sexual-orientation discrimination.

Last, James contends that denying him the right to participate in a workrelease 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 5TH CIR. 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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