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

                                                 FILED
                                                                         November 16, 2009
                                     No. 09-40476
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

LEXTER KENNON KOSSIE,

                                                   Plaintiff-Appellant

v.

CHRISTINA MELTON CRAIN, In Her Official Capacity as Chair of the Texas
Board of Criminal Jusitice; BRAD LIVINGSTON, In His Official Capacity as
Executive Director of the Texas Department of Criminal Justice,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 2:09-CV-8


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Lexter Kennon Kossie, Texas prisoner # 700661, proceeding pro se and in
forma pauperis (IFP), filed a civil rights lawsuit under 42 U.S.C. § 1983 against
officials at the Texas Department of Criminal Justice (TDCJ). He alleged that
the officials were violating his rights under the Due Process and Equal
Protection Clauses by awarding him good time credit even though he was



       *
         Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
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ineligible for release on mandatory supervision.       He sought an injunction
directing that he either be awarded “meaningful” good time credits or that he be
“compensated via monetary wages” for the “fictitious” credits. He also requested
that the defendants be enjoined from assigning him work duties or disciplining
him until he is awarded meaningful good time credits. Kossie consented to
proceed before a magistrate judge, see 28 U.S.C. § 636(c), who dismissed Kossie’s
amended complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failing to state a claim
upon which relief may be granted.
      “We review a judgment rendered by a magistrate judge just as we do a
judgment rendered by a district judge.” Madison v. Parker, 104 F.3d 765, 767
(5th Cir. 1997). The dismissal of a complaint under § 1915(e)(2)(B)(ii) for failure
to state a claim is reviewed under the same de novo standard of review
applicable to dismissals made pursuant to Federal Rule of Civil Procedure
12(b)(6). Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
      Kossie’s allegations that he suffered depression, anger, and headaches due
to the continued awarding of “fictitious” good time credits fell short of the kind
of physical injury required under 28 U.S.C. § 1997e(e) for a prisoner to bring an
action for money damages. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir.
1999). However, that the failure to satisfy the requirements of § 1997e(e) does
not foreclose prisoner actions for injunctive or declaratory relief. See id. at 719
& n.7.
      “In the prison context, a liberty interest is created in one of two ways:
Either the Due Process Clause confers a liberty interest or such an interest is
created by the state through a statute.” Richardson v. Joslin, 501 F.3d 415,
418-19 (5th Cir. 2007) (citations omitted).      Kossie does not argue that the
awarding of good time credits to him implicated or impinged any liberty interest
conferred by the Due Process Clause, but he contends that he had a
constitutionally protected liberty interest to be “free from receiving goodtime /
worktime credits” by virtue of Texas Code of Criminal Procedure art. 42.12, § 3g

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(formerly Tex. Code. Crim. Proc. art. 42.18, § 8(c)). While the relevant Texas
statutes prohibit Kossie from being released to community or mandatory
supervision, they do not actually prohibit prison officials from awarding him
good time credit.     See Tex. Code Crim. Proc. art. 42.12; Tex. Gov’t Code
§ 508.149; see also Tex. Code Crim. Proc. art. 42.18 (repealed 1997). Thus, the
statutes cited by Kossie belie his claim that prison officials are prohibited from
awarding good time or work time credit.
      In addition, this court has held that a prisoner does not have a protected
liberty interest in his custody classification, Harper, 174 F.3d at 719, and that
prison officials may require prisoners to work without pay. Ali v. Johnson, 259
F.3d 317, 318 (5th Cir. 2001). With no constitutionally protected interest at
stake, Kossie cannot state a due process claim under § 1983. See Meachum v.
Fano, 427 U.S. 215, 223-24 (1976).
      “A classification that categorizes inmates based on the type of criminal
offenses for which they have been convicted does not implicate a suspect class,”
and such classifications are therefore reviewed under the “rational basis”
standard. Wottlin v. Fleming, 136 F.3d 1032, 1036-37 (5th Cir. 1998). As in
Wottlin, where a categorical rule promulgated by the federal Bureau of Prisons
was “rationally related to the legitimate governmental interest of preventing the
early release of potentially violent inmates,” Texas’s denial of good time credits
that have the effect of reducing a prisoner’s period of incarceration to prisoners
convicted of certain offenses such as aggravated robbery would pass muster
under rational basis review. See id. at 1037.
      Kossie complains that by asking during the Spears 1 hearing what injury
he had suffered, the magistrate judge “inadvertently” misled him to believe that
he had to identify a physical harm in order to state a claim for relief under
§ 1983. As explained above, a physical injury is a threshold requirement for


      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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money damages pursuant to § 1997e(e), and the magistrate judge properly
explored this question given that Kossie’s complaint sought such damages. In
addition, the magistrate judge considered whether Kossie’s complaint stated a
claim for declaratory and injunctive relief for violations of his rights under the
Due Process and Equal Protection Clauses, belying Kossie’s argument that the
magistrate judge mistakenly found that Kossie’s failure to identify a physical
harm was dispositive of his lawsuit.
      For the foregoing reasons, we dismiss Kossie’s appeal as frivolous. See 5th
Cir. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).           The
dismissal of his complaint in the district court under § 1915(e)(2)(B)(ii) and the
dismissal of this appeal as frivolous count as two strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 386-88 (5th Cir. 1996). We
caution Kossie that if he accumulates three strikes under § 1915(g), he will not
be able to proceed in forma pauperis 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 § 1915(g).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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