Summary Calendar LAZARO FARAGA v. DANNY QJACKSON, Chairman of Mississippi Parole Board, LYDIA CHASSANIOL, WALLEY…

* 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this opinion should not be published and is not precedent except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
F I L E D
October 13, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60634
Summary Calendar
LAZARO FARAGA
Plaintiff - Appellant
v.
DANNY Q JACKSON, Chairman of Mississippi Parole Board,
LYDIA CHASSANIOL, WALLEY R NAYLOR, MONEY POWELL, JR,
ARTHUR LEE NORED, PETE POPE
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CV-80BN
--------------------
Before KING, Chief Judge, and DENNIS and PICKERING, Circuit
Judges.
PER CURIAM:*
Lazaro Faraga, Mississippi prisoner # 41313, appeals the
summary judgment granted in favor of the defendants, dismissing
his 42 U.S.C. § 1983 complaint. Faraga argues that the
Mississippi Parole Board violated his rights under the Ex Post
Facto Clause by denying him annual parole reconsideration
hearings, which he was entitled to under the law in effect at the
time he committed the offense. He further asserts that he was

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denied equal protection on the basis of his Cuban nationality by
the Parole Board in that similarly situated white and black
prisoners were granted parole, while he was denied parole.
Under the principles set forth in Garner v. Jones, 529 U.S.
244, 251-57 (2000), and California Dept. of Corr. v. Morales, 514
U.S. 499, 509-14 (1995), Faraga was required to show that the
Board’s amended rules permitting the Board to give set-offs of
from one to seven years created a significant risk of prolonging
his incarceration. Our de novo review of the record reveals that
the magistrate judge properly concluded that there was no genuine
issue of material fact as to whether application of the amendment
created the prohibited effect. See FED. R. CIV. P. 56(c)
Given the nature of Faraga’s crime and the other reasons
listed by the Board for denying him parole, it is difficult to
see how the Board increased the risk of his serving a longer
sentence when it decided to set Faraga’s next parole hearing five
years later, rather than annually. See Garner, 529 U.S. at 255.
Furthermore, the record indicates that the amendment allows the
Board to set reconsideration dates between one and seven years.
Thus, like the amendment in Garner, the amendment here vests the
Board with discretion as to how often an inmate may be
reconsidered. Id. at 254. The Board consequently may set
reconsideration dates according to an inmate’s likelihood of
release on parole. Id. Furthermore, there is no evidence in the
record indicating that Faraga would be precluded from seeking an

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expedited hearing from the Board if he experienced a change in
circumstances. See Morales, 514 U.S. at 512. Accordingly, the
magistrate judge did not err in granting summary judgment in
favor of the defendants as to Faraga’s claim under the Ex Post
Facto Clause.
Although Faraga sufficiently stated an equal protection
claim based on his Cuban nationality, see Thompson v. Patteson,
985 F.2d 202, 207 (5th Cir. 1993), the evidence he presented in
support of his claim was insufficient to create a genuine issue
of material fact regarding the Board’s alleged discrimination.
Specifically, the evidence Faraga produced concerned white and
black prisoners who had been reviewed for and granted parole in
1996 or earlier. Faraga’s evidence was not relevant as to
whether he was denied parole in 1999 and/or 2001 based on an
improper motive.
The district court’s judgment is AFFIRMED.

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