McPherson v. Quarterman, No. 08-50079 (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-50079 Summary Calendar October 27, 2008 Charles R. Fulbruge III Clerk BRIAN K MCPHERSON Plaintiff-Appellant v. NATHANIEL QUARTERMAN, 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. 5:07-CV-990 Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* Brian K. McPherson, Texas prisoner # 390173, moves for a certificate of appealability (COA) and to proceed in forma pauperis (IFP) to appeal the denial of his 28 U.S.C. § 2554 petition challenging disciplinary procedure # 20070275873. He argues that (1) although he lost no previously-earned goodtime credits, the mandatory language and substantive predicates of the TDCJ-ID regulations created a liberty interest entitling him to procedural due process * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 08-50079 protections during his disciplinary proceeding and (2) he had a property interest in the craftshop tools confiscated as a result of his disciplinary conviction, which deprivation also required that he be afforded procedural due process protections. With regard to his liberty interest claim, McPherson has not shown that reasonable jurists would find the district court s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). With regard to his property interest claim, the district court did not address that issue below. We therefore DENY COA in part, GRANT COA in part, GRANT IFP, VACATE the district court s judgment and REMAND for the district court to consider only the property interest claim. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). The district court should consider whether McPherson has stated a cognizable claim under either 42 U.S.C. § 1983 or § 2254 and whether the procedural due process requirements of Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974), were satisfied. 2
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