Antonio Lacy v. Rick Thaler, Director , 497 F. App'x 411 ( 2012 )

Case: 12-40792 Document: 00512056124 Page: 1 Date Filed: 11/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 16, 2012
No.12-40792
USDC No. 2:11-CV-330 Lyle W. Cayce
Clerk
ANTONIO M. LACY,
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Antonio M. Lacy, Texas prisoner # 594575, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C.
§ 2254 petition challenging his prison disciplinary conviction. He contends that
his liberty and property interests were implicated by the denial of procedural
due process in connection with his disciplinary hearing. His punishment
included a reprimand, 45 days of commissary and cell restriction, a reduction in
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40792 Document: 00512056124 Page: 2 Date Filed: 11/16/2012
No. 12-40792
time-earning status, and the subsequent forfeiture of $200 from his inmate trust
fund account.
With regard to his liberty interest claims, Lacy has not shown “that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see 28
U.S.C. § 2253(c)(2). With regard to Lacy’s claim that the forfeiture of $200
infringed his property interests, the district court should have entertained the
claim under 42 U.S.C. § 1983. See Eubanks v. McCotter, 802 F.2d 790, 793 (5th
Cir. 1986); see also Serio v. Members of La. St. Bd. of Pardons, 821 F.2d 1112,
1119 (5th Cir.1987). The court’s determination that the proper defendant could
not be determined is incorrect as Lacy’s pleadings indicate Warden Jackson and
Sgt. D. Mayer were involved in the forfeiture. Additionally, the Parratt/Hudson
doctrine does not bar Lacy’s due process claim because the prison officials’
actions in this case were pursuant to routine disciplinary procedure. See
Zinermon v. Burch, 494 U.S. 113, 115 (1990).
We therefore DENY the motion for a COA in part, GRANT the motion for
a COA in part, VACATE the district court’s judgment, and REMAND for the
district court to consider only Lacy’s claim regarding the infringement of his
property interest without procedural due process. See Whitehead v. Johnson,
157 F.3d 384, 388 (5th Cir. 1998).
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