R. Johnson v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION FILED. [10-50262 Affirmed in Part; Dismissed in Part] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 04/29/2011; denying as unnecessary motion for certificate of appealability filed by Appellant Mr. R. Wayne Johnson [6755479-2] [10-50262]

Case: 10-50262 Document: 00511439327 Page: 1 Date Filed: 04/08/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-50262
Summary Calendar

April 8, 2011
Lyle W. Cayce
Clerk

R. WAYNE JOHNSON,
Plaintiff-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Defendant-Appellee

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CV-39

Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant R. Wayne Johnson, Texas prisoner # 282756, appeals
the district court’s denial of his motions for a preliminary injunction and for
class-action certification. These motions were filed in conjunction with a 28
U.S.C. § 2254 application, in which Johnson challenged the validity of Texas’s
habeas corpus law, the alleged use of disciplinary infractions to deny inmates
release on mandatory supervision, and the charging of criminal acts as

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50262 Document: 00511439327 Page: 2 Date Filed: 04/08/2011
No. 10-50262
disciplinary infractions. Johnson’s application also stated that he was seeking
an injunction ordering Texas courts and officials to adhere to Supreme Court
precedent, declaring Texas’s habeas corpus law void, and ordering Texas officials
to discontinue prosecuting criminal acts as disciplinary infractions in the
absence of full constitutional safeguards at disciplinary hearings.
On appeal, Johnson first states that he is seeking a certificate of
appealability (COA). However, he is not required to obtain a COA to appeal the
denial of his motion for a preliminary injunction because he is not challenging
“the final order in a habeas corpus proceeding.” 28 U.S.C. § 2253(c)(1)(A).
Accordingly, his request for a COA is denied as unnecessary.
Interlocutory orders denying preliminary injunctions are immediately
appealable as an exception to the final-judgment rule.

See 28 U.S.C.

§ 1292(a)(1); Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991).
However, Johnson has not met the criteria for warranting a preliminary
injunction. See Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). The
district court did not abuse its discretion by denying his motion for a preliminary
injunction.

See Anderson v. Jackson, 556 F.3d 351, 355 (5th Cir. 2009).

Therefore, we affirm the district court’s order denying Johnson’s motion for a
preliminary injunction.
Federal Rule of Civil Procedure 23(f) provides that a party may appeal the
denial of class-action certification only “if a petition for permission to appeal is
filed with the circuit clerk within 14 days after the order is entered.” Johnson's
notice of appeal was filed well more than 14 days after the denial of his motion
for certification. Therefore, we dismiss his petition for permission to appeal the
denial of his motion for class certification as untimely filed.
MOTION DENIED; AFFIRMED IN PART; DISMISSED IN PART.

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