     Case: 13-20703      Document: 00512865093         Page: 1    Date Filed: 12/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 13-20703                        December 10, 2014
                                                                             Lyle W. Cayce
KIRBY DECKER,                                                                     Clerk


                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-2346


Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Kirby Decker, Texas prisoner # 594703, on the form to be used for filing
a 28 U.S.C. § 2254 application, alleged that (1) he was placed in solitary
confinement without an adequate hearing and in contravention of other due
process requirements, (2) he was denied an impartial hearing officer and
retaliated against so that he would accept mental health treatment, (3) he was
denied access to the day room, television, and the recreational yard without a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 13-20703

hearing, and (4) his solitary confinement imposed an atypical hardship on
prison life.   The district court determined that the claims challenged the
conditions of Decker’s confinement and therefore construed the claims as civil
rights claims. The court dismissed the habeas petition, and insofar as Decker’s
claims were best construed as arising under 42 U.S.C. § 1983, the court
dismissed the suit without prejudice because Decker had accumulated at least
three strikes pursuant to 28 U.S.C. § 1915(g) and because he had not shown
that he was in imminent danger of serious physical injury. Decker timely
appealed and requests a certificate of appealability (COA).
      A COA is required to appeal a final order in a § 2254 proceeding. 28
U.S.C. § 2253(c)(1)(A). To obtain a COA, Decker must show “a substantial
showing of the denial of a constitutional right.” § 2253(c)(2); see Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). When the district court’s denial of
relief is based on procedural grounds, a COA may not issue unless the prisoner
shows that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling,” Slack, 529 U.S. at 484, or that the issue deserves
encouragement to proceed further, Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
      Decker argues that the district court erred in construing his claims as
civil rights claims and in doing so without giving him notice and an opportunity
to amend or withdraw the filing. Decker has failed to make the requisite COA
showing. Id. Accordingly, his request for a COA is DENIED.
      Insofar as Decker is appealing the dismissal of the § 1983 complaint
without prejudice, no COA is necessary, but he has not challenged the district
court’s ruling that he is barred under § 1915(g) from proceeding in forma



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                               No. 13-20703

pauperis in an § 1983 proceeding absent a showing that he is under imminent
danger of serious physical injury. As the appeal from the dismissal of his
§ 1983 complaint is without arguable merit and thus frivolous, see Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983), it is DISMISSED. See 5TH CIR.
R. 42.2. His motion to recuse Judge Garza is DENIED.




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