Richard Rosin v. Michael Barnett, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [10-20150 Vacated and Remanded] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 10/12/2010; denying motion for certificate of appealability filed by Appellant Mr. Richard Dean Rosin [6500943-2] [10-20150]

Richard Rosin v. Michael Barnett, et al

Doc. 0

Case: 10-20150

Document: 00511238174

Page: 1

Date Filed: 09/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20150 S u m m a r y Calendar September 20, 2010 Lyle W. Cayce Clerk

R I C H A R D DEAN ROSIN, P e titio n e r-A p p e lla n t v. M I C H A E L D. BARNETT; DELATE D. JONES, Captain of Corrections; CADE T . CRIPPIN; MRS. MCMILLIAN; SERGEANT SMITH, Sergeant, also known a s Smith, R e s p o n d e n t s - A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-3908

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. PER CURIAM:* R ic h a r d Dean Rosin, Texas prisoner # 580399, moves this court for a c e r t ific a t e of appealability (COA) to appeal the district court's denial of relief, w h ic h he requested in a submisison styled as a 28 U.S.C. § 2254 petition. The d is t r ic t court construed the petition as raising only § 2254 claims arising out of R o s in 's prison disciplinary procedures and denied it on the basis that Rosin did

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 10-20150

Document: 00511238174 Page: 2 No. 10-20150

Date Filed: 09/20/2010

n o t have a liberty interest at stake. Rosin does not dispute the district court's d e c is io n that he was not entitled to relief under § 2254. Instead, he argues that h e does not seek habeas corpus relief but instead seeks damages and injunctive r e l i e f for civil rights violations under 42 U.S.C. § 1983. We construe Rosin's r e q u e s t for a COA as both a request for a COA for any § 2254 claims and an a p p e a l of the dismissal of his civil rights claims. T h e label attached to a prisoner's pro se pleading is not controlling; rather, c o u r ts must look to the content of the pleading. United States v. Santora, 711 F .2 d 41, 42 n.1 (5th Cir. 1983). Rosin alleged in his petition that his prison d is c ip lin a r y proceedings did not meet minimum standards of procedural due p r o c e s s , a claim that may be cognizable in a § 1983 suit as long as it does not im p lic a t e the validity of the disciplinary conviction or affect the duration of R o s in 's sentence. See Muhammad v. Close, 540 U.S. 749, 751 (2004). Rosin's a lle g a t io n s potentially give rise to two other cognizable § 1983 claims: that p r is o n officials violated his right under the First Amendment by harassing and r e t a lia tin g against him for filing grievances, and that officials were deliberately in d iffe r e n t when they forced him to perform work that did not comport with his m e d ic a l restrictions, causing him to fall and break his arm. The district court, h o w e v e r , did not address whether Rosin stated cognizable claims under § 1983. See Serio v. Member of La. St. Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1 9 8 7 ). A c c o r d in g ly , Rosin's request for a COA to appeal the dismissal of his § 2254 claims is DENIED. The district court's dismissal of Rosin's civil rights c la im s is VACATED, and the case is REMANDED for the district court to c o n s id e r whether Rosin has alleged any civil rights claims cognizable under § 1983.

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