Clyde Nubine v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION ORDER FILED. [10-20225 Vacated and Remanded] Judge: FPB , Judge: EBC , Judge: JWE Mandate pull date is 10/04/2010; denying motion to proceed IFP filed by Appellant Mr. Clyde Nubine [6517913-2]; granting in part and denying in part motion for certificate of appealability filed by Appellant Mr. Clyde Nubine [6517913-3] [10-20225]

Clyde Nubine v. Rick Thaler, Director

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Case: 10-20225

Document: 00511231001

Page: 1

Date Filed: 09/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20225 S u m m a r y Calendar September 13, 2010 Lyle W. Cayce Clerk

C L Y D E NUBINE, P e titio n e r-A p p e lla n t v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O N A L INSTITUTIONS DIVISION, R e s p o n d e n t -A p p e lle e

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-2313

B e fo r e BENAVIDES, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:* C ly d e Nubine, Texas prisoner # 398312, has moved for a certificate of a p p e a la b ility to challenge the district court's denial of relief on his 28 U.S.C. § 2254 petition, in which Nubine challenged a disciplinary conviction. Nubine h a s also moved to proceed in forma pauperis (IFP) on appeal. To obtain a COA, Nubine must make "a substantial showing of the denial o f a constitutional right." 28 U.S.C. § 2253(c)(2). For claims dismissed on

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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p r o c e d u r a l grounds, Nubine must show "that jurists of reason would find it d e b a t a b le whether the petition states a valid claim of the denial of a c o n s t it u t io n a l right and that jurists of reason would find it debatable whether t h e district court was correct in its procedural ruling." Slack v. McDaniel, 529 U .S . 473, 484 (2000). To the extent the dismissal was on the merits, he must " d e m o n s t r a t e that reasonable jurists would find the district court's assessment o f the constitutional claims debatable or wrong." Id. "Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can d is p o s e of the application in a fair and prompt manner if it proceeds first to r e s o lv e the issue whose answer is more apparent from the record and a r g u m e n t s ." Id. at 485. N u b in e reiterates his contention that policymakers at the Texas D e p a r t m e n t of Criminal Justice are engaged in a conspiracy to violate his rights. Nubine, however, does not address the district court's contention that the c o n s p ir a c y claim is unexhausted and procedurally barred from federal habeas r e v ie w . Nubine has therefore abandoned the issue for purposes of his COA a p p lic a t io n . See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Nubine argues that the district court erred by refusing to allow him to c o n d u c t discovery with respect to his habeas claims. He also contends that his d u e process rights were violated in connection with his loss of 23 days of good t im e credits as a result of his disciplinary conviction. As to the above issues, a C O A is denied because Nubine has failed to make a substantial showing of the d e n ia l of a constitutional right. See Slack, 529 U.S. at 484. Nubine's motion to p r o c e e d in forma pauperis on appeal is also denied. A lt h o u g h the district court treated Nubine's filings solely as a habeas p e t it io n , Nubine also made allegations regarding a conspiracy to violate his civil r ig h t s and he raised complaints about the temperature in the area he was c o n fin e d and the food he was being served. Nubine asserts that his district court filin g s set forth claims regarding the conditions of his confinement that were 2

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c o g n iz a b le under 42 U.S.C. § 1983.

Additionally, he contends that the

a lle g a t io n s as to a conspiracy "should not have gone unanswered" by the district c o u r t. Giving his pro se filings the benefit of liberal construction, see Yohey v. C o llin s , 985 F.2d 222, 224-25 (5th Cir. 1993), Nubine is arguing that it was error fo r the district court not to have addressed his civil rights claims. Where a habeas petition contains both habeas claims and civil rights c la im s properly brought pursuant to 42 U.S.C. § 1983, the district court should s e p a r a t e out the § 1983 claims and address them. See Patton v. Jefferson Corr. C tr ., 136 F.3d 458, 463-64 (5th Cir. 1998). As the district court did not separate a n d address Nubine's § 1983 claims, we will vacate the judgment to the extent it dismissed such claims and remand the civil rights claims for further p r o c e e d in g s . C O A DENIED AS TO HABEAS CLAIMS; IFP DENIED; DISMISSAL OF C I V I L RIGHTS CLAIM S VACATED; REMAND FOR FURTHER P R O C E E D I N G S AS TO CIVIL RIGHTS CLAIMS.

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