United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 17, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50797
Summary Calendar
RICHARD WILLIAM PAYNE,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
No. SA-03-CV-289
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Richard William Payne, a Texas prisoner (# 620984), has
filed in this court a certificate of appealability (“COA”) to
appeal the district court’s order denying his habeas corpus
petition, purportedly filed under 28 U.S.C. § 2254. He also seeks
to proceed in forma pauperis (“IFP”) on appeal.
*
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that this opinion should not be published and is not precedent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.
In his petition, Payne alleged that his constitutional
rights had been violated in connection with a prison disciplinary
proceeding which had resulted in 30 days of commissary and
recreation restrictions being imposed upon Payne. Payne did not
attack his underlying criminal conviction and he did not seek
either to be released from confinement or an order that the
duration of his prison sentence be shortened. He apparently sought
only an order overturning the disciplinary conviction. Because a
favorable determination of Payne’s claims would not automatically
entitle him to accelerated release, the appropriate vehicle for his
claims was a civil rights action under 42 U.S.C. § 1983. See
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Carson v. Johnson,
112 F.3d 818, 820-21 (5th Cir. 1997). Accordingly, Payne does not
need a COA to proceed with this appeal, and his application for a
COA is DENIED as unnecessary.
Although Payne filed this action as a 28 U.S.C. § 2254
petition and the district court did not explicitly construe it
otherwise, the district court denied Payne leave to proceed IFP on
appeal on the ground that his appeal was not taken in good faith,
apparently pursuant to provisions of the Prison Litigation Reform
Act (“PLRA”). The PLRA does not apply to habeas actions. See
Sonnier v. Johnson, 161 F.3d 941, 943 (5th Cir. 1998). Nonethe-
less, as discussed above, Payne’s action is in the nature of a
civil rights action and should be treated as such. A district
court may certify under 28 U.S.C. § 1915(a)(3) and FED. R. APP.
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P. 24(a) that an appeal is not taken in good faith and deny IFP
accordingly, which requires the litigant either to pay the
appellate filing fee or to challenge the district court’s
certification decision. Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).
A review of Payne’s substantive claims reveals that his
appeal, if construed as a civil rights action, is without arguable
merit and frivolous. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). The penalties imposed upon Payne following his
disciplinary conviction — commissary and recreation restrictions —
do not implicate a liberty interest under the Due Process Clause.
See Sandin v. Conner, 515 U.S. 472. 484 (1995); Malchi v. Thaler,
211 F.3d 953, 958-59 (5th Cir. 2000).
Because the appeal is frivolous, we DENY Payne’s motion
to proceed IFP and DISMISS his appeal as frivolous. See Baugh,
117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. The dismissal of
this appeal as frivolous counts as a “strike” for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). Payne already has one strike based on the
dismissal of a prior civil rights complaint as frivolous and for
failure to state a claim, and this court’s dismissal of Payne’s
appeal thereof for lack of jurisdiction. See Payne v. Johnson,
No. C-01-CV-193 (S.D. Tex. May 13, 2002); Payne v. Johnson,
No. 02-40910 (5th Cir. Jan. 9, 2003). Payne is cautioned that if
he accumulates three strikes, he will not be permitted to proceed
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IFP in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
Payne has filed a motion to “dismiss” or vacate the
district court’s order assessing an initial partial filing fee.
The motion is not well-taken, see Morgan v. Haro, 112 F.3d 788, 789
(5th Cir. 1997) (district court is to assess PLRA filing fees in
the first instance), and is DENIED.
COA DENIED AS UNNECESSARY; IFP DENIED; MOTION TO
“DISMISS” FILING-FEE ORDER DENIED; APPEAL DISMISSED AS FRIVOLOUS;
THREE-STRIKES BAR WARNING ISSUED.
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