* 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opinion should not be published and is not precedent except under the limited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.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-20291

(Summary Calendar)

_________________

SCOTT PALMER,

Plaintiff - Appellant,

versus

JOHN WYETH; S O WOODS, JR; BILL G CHEATMAN;

VICTOR RODRIGUEZ; MELINDA BOZARTH,

Defendants - Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(H-97-CV-42)

November 9, 1998

Before EMILIO M. GARZA, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Scott Palmer, Texas prisoner #660844, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action against various

members of the Texas Board of Pardons and Paroles (“Board”). He

also appeals the district court’s denial of his motion for

appointment of counsel, his motion to proceed in forma pauperis on

appeal and his motion to recuse. We affirm.
 

1 Section 1915A applies to prisoners, like Palmer, who have paid the

required filing fee. See Martin v. Scott, ___ F.3d ___, ___, 1998 WL 650992, at

*1 (5th Cir. 1998) (per curiam).

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I

Palmer alleges that when he was interviewed by John Wyeth for

the purpose of gathering information that one day would be used to

determine Palmer’s eligibility for parole, Wyeth inserted various

erroneous pieces of information into Palmer’s prison file. Palmer

further alleges that when he later was interviewed by an unnamed

parole counselor while in the prison psychiatric ward, the

counselor failed to ascertain the accuracy of Palmer’s file and to

correct the erroneous information that Wyeth had inserted into

Palmer’s file. Palmer asserts that as a result of the actions of

Wyeth and the unnamed prison counselor, the Board erroneously

refused to grant him parole. Palmer claims that all of these

actions violated due process. He seeks compensatory and punitive

damages.

II

The district court dismissed Palmer’s claims as frivolous

because (1) “an inmate does not have a federal constitutional right

to be released prior to the expiration date of his sentence” and

“there is no right to parole under Texas law,” (2) Palmer failed to

show “that the Board’s decision was declared invalid or otherwise

called into question” and (3) a petition for a writ of habeas

corpus, rather than a § 1983 suit, was the appropriate vehicle for

Palmer to “attack the result of a hearing concerning his release

date.” See 28 U.S.C. § 1915A (1997).1 The district court also
 

2 When Palmer filed his motion to recuse, the IFP motion had been

pending for slightly more than two months. The district court had ruled on the

motion to compel a ruling on the IFP motion about a week before the motion to

recuse had been filed.

 

3 Palmer attached an affidavit to his motion to recuse in accordance

with 28 U.S.C. § 144.

 

4 The district court cited the frivolousness of Palmers’ claims as the

reason for denying the IFP motion. See Baugh v. Taylor, 117 F.3d 197, 202 n.21

(5th Cir. 1998) (“it often may suffice for the district court to incorporate by

reference its decision dismissing the prisoner’s complaint on the merits with or

without supplementation, as the trial court deems appropriate, to fully apprise

us of the reasons for its certification [that the appeal is not taken in good

faith].”).

 

5 The district court denied a second motion to proceed in forma

pauperis on appeal made after Palmer filed his second notice of appeal. Palmer

does not appeal this ruling.

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denied Palmer’s motion for appointment of counsel. See id. §

1915(e)(1) (1997). It then entered a final judgment. After filing

a notice of appeal, Palmer moved to proceed in forma pauperis on

appeal (“IFP motion”). See FED. R. APP. P. 24(a). He subsequently

sought recusal of the district court because of delays in rulings

on his IFP motion2 and his motion to compel a ruling on the IFP

motion, and because of the earlier rulings against him. See 28

U.S.C. §§ 144, 455 (1994).3 The district court denied the IFP

motion,4 the motion to compel a ruling on the IFP motion and the

motion to recuse. Palmer filed a second notice of appeal

challenging the denial of the IFP motion and the motion to recuse.5

III

We review the dismissal of Palmer’s claims as frivolous for

abuse of discretion. See Martin, ___ F.3d at ___, 1998 WL 650992,

at *1. “A complaint is frivolous if it lacks an arguable basis in

law or fact, such as when a prisoner alleges violations of a legal
 

6 We find no need to consider the other reasons given by the district

court for dismissing Palmer’s claims as frivolous))that Palmer failed to show

“that the Board’s decision was declared invalid or otherwise called into

question,” see Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372, 129

L. Ed. 2d 383 (1994), and that a petition for a writ of habeas corpus, rather

than a § 1983 suit, was the appropriate vehicle for Palmer to “attack the result

of a hearing concerning his release date,” see Davis v. Fetchel, 150 F.3d 486,

490 (5th Cir. 1998).

 

7 As the current appointment of counsel statute mirrors its

predecessor, we still adhere to the jurisprudence developed under its

predecessor. Compare 28 U.S.C. § 1915(e)(1) (“The court may request an attorney

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interest that does not exist.” Id. 

We find no abuse of discretion in the dismissal of Palmer’s

claims as frivolous. Palmer alleges that Wyeth inserted false

information into his prison file and that the Board erroneously

denied him parole because it relied on the false information

inserted into his file by Wyeth in violation of due process. As

Texas law creates no protected liberty interest in parole, see

Johnson v. Martinez, 110 F.3d 299, 308-09 & n.13 (5th Cir. 1997)

(rejecting Texas prisoner’s due process claim alleging “that the

Board considers unreliable or false information in making parole

determinations” because a prisoner possesses no liberty interest in

state parole procedures), cert. denied, ___ U.S. ___, 118 S. Ct.

559, 139 L. Ed. 2d 400 (1997), we conclude that the district court

did not abuse its discretion in dismissing Palmer’s claims as

frivolous.6

IV

We review the denial of Palmer’s motion for appointment of

counsel for abuse of discretion. See Pedraza v. Jones, 71 F.3d

194, 197 (5th Cir. 1997) (reviewing denial of motion for

appointment of counsel under predecessor statute).7 “There is no
to represent any person unable to afford counsel.”) with id. § 1915(d) (1994)

(superseded) (“The court may request an attorney to represent any such person

unable to employ counsel . . . .”). 

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automatic right to the appointment of counsel in a section 1983

case. Furthermore, a district court is not required to appoint

counsel in the absence of ‘exceptional circumstances’ which are

dependent on the type and complexity of the case and the abilities

of the individual pursuing that case.” Cupit v. Jones, 835 F.2d

82, 86 (5th Cir. 1987) (decision under predecessor statute).

We find no abuse of discretion in the denial of Palmer’s

motion for appointment of counsel. This case did not involve

exceptional circumstances, and Palmer proved quite able to pursue

it. See Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989)

(finding no abuse of discretion where case was not complex and the

plaintiff, a prisoner, had been capable of self-representation).

We, therefore, hold that the district court did not abuse its

discretion in denying Palmer’s motion for appointment of counsel.

V

We reject Palmer’s appeal of the denial of his IFP motion.

This appeal is inappropriate. To challenge the denial of his IFP

motion, Palmer must file a motion to proceed in forma pauperis on

appeal, not an appeal, with us. See FED. R. APP. P. advisory

committee’s note; Baugh, 117 F.3d at 202; United States v.

Boutwell, 896 F.2d 884, 890 (5th Cir. 1990) (Gee, J.). Moreover,

even assuming that Palmer’s second notice of appeal is a motion to

proceed in forma pauperis on appeal, we deny it because Palmer’s
 

8 “[W]here the merits are so intertwined with the certification

decision as to constitute the same issue,” we may “determin[e] the merits of the

appeal as well as the appropriateness of [pauper] . . . status.” Baugh, 117 F.3d

at 202. 

 

9 We agree with Palmer that 28 U.S.C. § 1291 provides us with

jurisdiction over the denial of his post-judgment motion to recuse. See Ohntrup

v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir. 1986) (holding order denying

counsel’s post-judgment motion to withdraw appealable under 28 U.S.C. § 1291);

15B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3916 (2d ed. 1992) (“The

finality requirement [to bring an appeal under § 1291] is met by orders entered

after final judgment, too late or too collateral to be reviewed effectively on

appeal from the final judgment, upon complete disposition of the post-judgment

proceeding.”). 

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claims are frivolous.8 Cf. Jackson v. Dallas Police Dep’t, 811

F.2d 260, 261 (5th Cir. 1986) (granting motion to proceed in forma

pauperis on appeal because plaintiff presented a non-frivolous

appeal (i.e., the legal points were arguable on their merits)). 

VI 

We review the denial of Palmer’s motion to recuse for abuse of

discretion.9 See In re Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993)

(addressing recusal motion brought under § 455); United States v.

MMR Corp., 954 F.2d 1040, 1044 (5th Cir. 1992) (addressing recusal

motion brought under § 144). We find no abuse of discretion. The

district court was not required to recuse itself because of its

rulings against Palmer. See Hipp, 5 F.3d at 116 (“Adverse rulings

against the defendant in the same or a prior judicial proceeding do

not render the judge biased.”). Nor did its delay in ruling on

motions necessitate recusal. See Rafferty v. NYNEX Corp., 60 F.3d

844, 847-48 (D.C. Cir. 1995) (per curiam) (rejecting call for

recusal based on the mere fact of unfavorable rulings and delays in

ruling on motions); Loranger v. Stierheim, 10 F.3d 776, 781 (11th

Cir. 1994) (per curiam) (applying Fifth Circuit’s standard for
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recusal under § 455 based on judicial remarks and rulings)(“Neither

the district judge’s delay, nor his adverse rulings, constitute the

sort of ‘pervasive bias’ that necessitates recusal.”); West v.

United States, 994 F.2d 510, 512 (8th Cir. 1993) (“While the delays

in ruling on the [petitioner’s] . . . section 2255 motion were

unfortunate, they do not evidence bias.”). We, therefore, conclude

that the district court did not abuse its discretion in denying

Palmer’s motion to recuse.

VII

We AFFIRM the dismissal of Palmer’s claims as frivolous, the

denial of Palmer’s motion for appointment of counsel and the denial

of Palmer’s motion to recuse, and DENY Palmer’s IFP motion.