Reyna v. Johnson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20979
Summary Calendar
_____________________
ELIBERTO REYNA,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. H-00-CV-2543
_________________________________________________________________
March 13, 2001
Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
Eliberto Reyna, Texas prisoner # 322163, seeks a certificate
of appealability (“COA”) to appeal the district court’s dismissal
of his petition for habeas relief under 28 U.S.C. § 2254. The
district court construed Reyna’s assertions that he was placed in
administrative segregation without due process and that this
placement resulted in his loss of the opportunity to earn good-time
*
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this opinion should not be published and is not precedent except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.
credits arose under 28 U.S.C. § 2254. Because Reyna’s assertions
that he was denied due process at his classification hearing would
not necessarily win his release from custody and would not create
an entitlement of early release, these claims should have been
construed as arising under 42 U.S.C. § 1983. See Serio v. Members
of La. State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987);
Cook v. Texas Dept. of Criminal Justice Transitional Planning
Dept., 37 F.3d 166, 168 (5th Cir. 1994)(citation omitted).
Further, losing the opportunity to earn good-time credits does not
allege the violation of a constitutional right. See Malchi v.
Thaler, 211 F.3d 953, 959 (5th Cir. 2000); see also Luken v. Scott,
71 F.3d 192, 193 (5th Cir. 1995). Also, because Reyna has failed
to show that he was denied due process, he cannot succeed on this
ground, and the district court’s denial of relief is AFFIRMED.
Because his claims are not based on habeas, his request for a COA
is DENIED AS UNNECESSARY.
Reyna also contends that the district court erred in failing
to consider his assertion that his placement in administrative
segregation has placed him in fear and danger of violence from
other prison gang members. The district court did not address the
merits of this claim because it construed it as a conditions of
confinement claim within a 28 U.S.C. § 2254 petition. Reyna’s
filing was in fact a complaint under 42 U.S.C. § 1983. However,
2
even if it had been a habeas petition, the district court should
have addressed the merits of Reyna’s civil rights claims. See
Serio, 821 F.2d at 1119. Because the district court did not
address the merits of Reyna’s assertion that he has been placed in
danger by his administrative segregation classification, the denial
of relief is VACATED as to this ground alone and the case REMANDED
for further proceedings. Reyna has failed to brief on appeal his
other contentions that the conditions of the administrative
segregation area of the prison are unduly harsh and restrictive,
and they are therefore deemed abandoned on appeal. See Brinkmann
v. Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Because Reyna’s claims arise under 42 U.S.C. § 1983 rather
than 28 U.S.C. § 2254, the district court should have assessed an
initial partial filing fee under the Prison Litigation Reform Act
(PLRA) when granting Reyna leave to proceed in forma pauperis (IFP)
on appeal. See Carson v. Johnson, 112 F.3d 818, 820 (5th Cir.
1997). Upon remand, the district court should make the appropriate
assessment of filing fees.
COA DENIED AS UNNECESSARY; AFFIRMED in part; VACATED and
REMANDED in part.
3