Barnes v. TDCJ - Inst Div ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50126
Summary Calendar
RODERICK LYN BARNES,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CV-58
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September 29, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Roderick Lyn Barnes, TDCJ #607656, has filed an application
for leave to proceed in forma pauperis (IFP) on appeal, following
the district court’s dismissal of his 42 U.S.C. § 1983 complaint.
By moving for IFP, Barnes is challenging the district court’s
certification that IFP should not be granted on appeal because
his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Barnes argues that the district
court erred in construing his complain as arising out of 42
U.S.C. § 1983 because the loss of his trusty class status
*
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that this opinion should not be published and is not precedent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.
No. 00-50126
-2-
affected his release date and deprived him of the accrual of
extra good time credits, that the district court erred by
applying the incorrect law in deciding that Barnes failed to
state a claim, and that the district court abused its discretion
in denying his motion to amend.
The district court erred when it construed Barnes’ claim as
coming under § 1983 because Barnes’ claim should have been
construed as a 28 U.S.C. § 2254 petition for writ of habeas
corpus. See Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).
The district court did not err in finding that Barnes failed to
state a claim because a prisoner does not have a constitutionally
cognizable claim for the right to a particular time-earning
status. See Id. at 959. The district court did not abuse its
discretion in denying Barnes’ motion to amend because the
amendment would have been futile. See FDIC v. Conner, 20 F.3d
1376, 1385 (5th Cir. 1994).
The district court’s certification that Barnes’ appeal was
not taken in good faith was not error, and the appeal is
dismissed. See Baugh, 117 F.3d at 202 and n.24.
IFP DENIED; APPEAL DISMISSED.