                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 01-30323
                          Summary Calendar



RICKY NELSON,

                                          Plaintiff-Appellee,

versus

RICHARD STALDER, Department of Corrections, ET AL.,

                                          Defendants

KELLY WARD, Warden of David Wade Correctional Center;
JEAN BAKER, records analyst at David Wade Correctional Center;
HENRY GOINS,

                                          Defendants-Appellants
                        --------------------
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                       USDC No. 98-CV-1893-I
                        --------------------
                          January 25, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     The defendants appeal the district court’s denial of their

qualified-immunity-based motion for summary judgment.    They argue

that the district court erroneously determined that the plaintiff

had alleged the violation of a clearly established constitutional

right and that their attendant conduct was objectively

unreasonable.   We agree, and we reverse and remand for entry of

summary judgment in their favor.

     *
        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that this opinion should not be published and is not precedent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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     Summary-judgment decisions are reviewed de novo, applying

the same test as the district court.    E.g., Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992).    "Summary

judgment is properly granted if 'the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.'"    Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986) (quoting Rule 56(c)).   The denial of a

motion for summary judgment based on qualified immunity is

immediately appealable only when based on an issue of law.

Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999).     The

district court did not deny summary judgment based on the

existence of genuine issues of material fact, but rather decided,

as a matter of law, that the facts did not support the

qualified-immunity defense.    We therefore have jurisdiction over

this appeal.

     The evaluation of a qualified-immunity claim is a two-step

process.    "The first step is to determine whether the plaintiff

has alleged a violation of a clearly established constitutional

right."    Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997);

see also Hare v. City of Corinth, MS, 135 F.3d 320, 325 (5th Cir.

1998).    A right is “clearly established” if the unlawfulness of

the conduct in question is apparent based on pre-existing law

from this circuit or from the Supreme Court.    Shipp v. McMahon,

234 F.3d 907, 915 (5th Cir. 2000), cert. denied, 121 S. Ct. 2193

(2001).
                            No. 01-30323
                                 -3-

     "The second step requires the court to determine whether

[the defendant's] conduct was objectively reasonable under

existing clearly established law. "     Colston, 130 F.3d at 99; see

also Hare, 135 F.3d at 326.    "Clearly established" means that the

"contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right."    Anderson v. Creighton, 483 U.S. 635, 640

(1987).   A defendant is entitled to qualified immunity "unless,

at the time and under the circumstances of the challenged

conduct, all reasonable officials would have realized that [the

defendant's conduct] was proscribed by the federal law on which

the suit is founded."    Pierce v. Smith, 117 F.3d 866, 871 (5th

Cir. 1997).

     To bring a procedural due process claim under 42 U.S.C.

§ 1983, a plaintiff must first identify a protected liberty

interest and then prove that governmental action resulted in a

deprivation of that interest.    San Jacinto Sav. & Loan v. Kacal,

928 F.2d 697, 700 (5th Cir. 1991).    Nelson had a state-created

liberty interest in receiving credit for time served because the

state court determined that state law required that he be given

such credit.   See Sandin v. Conner, 515 U.S. 472, 483-84 (1995)

(States may create liberty interests which are protected by the

Due Process Clause).    That interest was indeed deprived by the

erroneous decision of the defendants.      Nelson was therefore

entitled to the protections of procedural due process, which he

received in the form of the administrative review procedures.

See Thompson v. Cockrell, __ F.3d __ (5th Cir. Aug. 23, 2001, No.
                            No. 01-30323
                                 -4-

00-40820), 2001 WL 958905 at *1 (only those state-created liberty

interests that inevitably affect the duration of a sentence

qualify for constitutional protection).

     However, that right was not clearly established until the

state court declared it.    At the time the defendants made their

erroneous interpretation of the law, Nelson had no clearly

established liberty interest in the defendants’ interpreting

state law correctly.    Nelson received his right to procedural due

process when the state court corrected the defendants’ error and

ordered that Nelson be credited with the time served.

     The district court based its determination that Nelson had

alleged the violation of a clearly established procedural due

process right on a decision from the Third Circuit, Sample v.

Diecks, 885 F.2d 1099 (3d Cir. 1989).      Sample is inapposite,

however, because it is neither Fifth Circuit nor Supreme Court

jurisprudence.   See Shipp, 234 F.2d at 915.    It is furthermore

distinguishable insofar as it involved a prison regulation which

authorized consultation with legal professionals on questionable

computation issues.    Nelson has identified no such regulation,

nor has he identified relevant federal jurisprudence which

establishes that the administrative remedy procedure in place

afforded him insufficient procedural due process or that

postdeprivation remedies were inadequate.

     Nelson has failed to establish the violation of a clearly

established constitutional right, and, therefore, the defendants

are entitled to the qualified-immunity defense.
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                               -5-

     We therefore REVERSE and REMAND for entry of summary

judgment in favor of the appellants.
