IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-21037
Summary Calendar
LEROY WAFER,
Plaintiff-Appellant,
versus
GARY JOHNSON, Warden; T.R. CARTER;
S.O. WOODS, JR.; VICTOR RODRIGUEZ;
MELINDA BOZARTH; JUANITA LLAMAS;
BOARD OF PARDONS AND PAROLES;
A.L. LOSACK; K. HELMBOLD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-H-96-3017
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December 3, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Leroy Wafer, Texas prisoner # 289279, moves this court for
leave to proceed on appeal in forma pauperis (IFP) from the
dismissal of his 42 U.S.C. § 1983 civil rights action as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The
district court certified pursuant to Fed. R. App. P. 24(a) that
Wafer’s appeal was not taken in good faith. Wafer’s motion for
leave to proceed IFP on appeal is treated as a challenge to the
*
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that this opinion should not be published and is not precedent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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district court’s certification. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). This court reviews a 28 U.S.C.
§ 1915(e)(2)(B) dismissal for abuse of discretion. Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Wafer argues that the district court abused its discretion
in denying his motion to recuse the magistrate judge under 28
U.S.C. § 455. Because Wafer did not demonstrate that the
magistrate judge had a bias resulting from a personal,
extrajudicial source, the district court did not abuse its
discretion in dismissing Wafer’s motion to recuse the magistrate
judge. See United States v. MMR Corp., 954 F.2d 1040, 1044 (5th
Cir. 1992); United States v. Harrelson, 754 F.2d 1153, 1165 (5th
Cir. 1985).
Wafer argues that the district court erred in denying his
claim that the defendants violated his due process rights by
altering his mandatory release date and in retroactively applying
a Texas statute which provides that forfeited good time credits
will not be restored. Because Wafer has not shown that the
disciplinary proceedings resulting in the alteration of his
mandatory release date have been invalidated, the district court
did not abuse its discretion in dismissing Wafer’s claims for
monetary damages under § 1983. See Heck v. Humphrey, 512 U.S.
477, 486-87 (1994); Edwards v. Balisok, 117 S. Ct. 1584, 1589
(1997).
Wafer argues that the district court abused its discretion
in denying his motion for class action certification. Because
Wafer did not demonstrate that the prerequisites for maintaining
No. 97-21037
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a class action under Fed. R. Civ. P. 23 were met, the district
court did not abuse its discretion in Wafer’s motion for class
action certification.
Wafer did not raise or brief his retaliation or mail-
tampering claims in his appellate brief. Therefore, he abandoned
these issues on direct appeal. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
To the extent that Wafer raised a potential habeas claim
concerning the alteration of his mandatory release date, Wafer
has raised an issue of arguable merit. See Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997). Therefore, Wafer’s IFP motion
is GRANTED. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). The district court’s judgment is MODIFIED to be without
prejudice to any potential habeas claims and AFFIRMED as
modified.
IFP MOTION GRANTED; DISTRICT COURT’S JUDGMENT MODIFIED TO BE
WITHOUT PREJUDICE TO ANY POTENTIAL HABEAS CLAIMS AND AFFIRMED AS
MODIFIED.