Moore v. Booker ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60213
USDC No. 1:98-CV-314-D-D
GARRY LEE MOORE,
Petitioner-Appellant,
versus
WALTER BOOKER, Superintendent
of Mississippi State Penitentiary;
MIKE MOORE, Attorney General,
State of Mississippi,
Respondents-Appellees.
---------------------
Appeal from the United States District Court
for the Northern District of Mississippi
---------------------
September 3, 1999
Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM1:
Garry Lee Moore, Mississippi prisoner # 46504, requests a
certificate of appealability (COA) to appeal the district court’s
denial of his in forma pauperis (IFP) request with respect to his
petition filed purportedly pursuant to 28 U.S.C. § 2241. Moore
also requests leave to proceed IFP on appeal.
An order denying an application to proceed IFP is
immediately appealable and thus is properly before this court.
1
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that this opinion should not be published and is not precedent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.
475.4.
No. 99-60213
- 2 -
See Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th
Cir. 1975). To obtain a COA when the assigned error concerns a
nonconstitutional issue, the applicant must first make a credible
showing that the district court erred. Davis v. Johnson, 158
F.3d 806, 809 (5th Cir. 1998).
The district court construed Moore’s petition as challenging
the conditions of confinement, consequently determined that the
claim must be pursued under 42 U.S.C. § 1983, and denied Moore
leave to proceed IFP because he has been barred by 42 U.S.C.
§ 1915(g) from proceeding IFP in civil actions.
"The line between claims which must initially be pressed by
writ of habeas corpus and those cognizable under § 1983 is a
blurry one." Cook v. Texas Dep't of Crim. Just. Transitional
Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994). “Generally,
§ 1983 suits are the proper vehicle to attack unconstitutional
conditions of confinement and prison procedures.” Carson v.
Johnson, 112 F.3d 818, 820 (5th Cir. 1997). A challenge to the
fact and duration of confinement must be pursued in a habeas
corpus action. Preiser v. Rodriguez, 411 U.S. 475, 488-90, 500
(1973); Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en
banc), cert. denied, 119 S. Ct. 1052 (1999). When a prisoner
challenges a single hearing as constitutionally defective, the
challenge must be pursued by writ of habeas corpus. Serio v.
Members of La. St. Bd. of Pardons, 821 F.2d 1112, 1118 (5th Cir.
1987); see also Johnson v. Hardy, 601 F.2d 172, 173 (5th Cir.
1979) (prisoner’s “contention that he was denied due process in a
No. 99-60213
- 3 -
prison disciplinary hearing is in reality a challenge to the
duration of his confinement.”).
In his complaint, Moore alleged that he had been confined in
administrative segregation since 1995 after he was found guilty
at the disciplinary hearing of conspiring to smuggle U.S. postal
money orders into the prison. Moore alleged that the
disciplinary hearing had violated his due process rights because
the charging officer did not have actual knowledge that he had
committed the offense, he had not received adequate notice of the
charges against him, there had been an inadequate investigation,
false testimony had been given, and the disciplinary board had
not given any reasons for crediting the charging officer’s
testimony over the testimony offered in his behalf.
Moore’s contention that he was denied due process in a
prison disciplinary hearing is a challenge to the fact and
duration of his confinement, and it must be pursued by writ of
habeas corpus. Johnson, 601 F.2d at 173; Preiser, 411 U.S. at
488-90; Carson, 112 F.3d at 820. Accordingly, we GRANT a COA and
IFP, VACATE the district court’s denial of IFP, and REMAND the
case to the district court for further proceedings.
COA AND IFP GRANTED; VACATE AND REMAND.