     Case: 10-20225     Document: 00511231001          Page: 1    Date Filed: 09/13/2010




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

                                                 FILED
                                                                        September 13, 2010
                                     No. 10-20225
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

CLYDE NUBINE,

                                                   Petitioner-Appellant

v.

RICK THALER, 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. 4:09-CV-2313


Before BENAVIDES, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Clyde Nubine, Texas prisoner # 398312, has moved for a certificate of
appealability to challenge the district court’s denial of relief on his 28 U.S.C.
§ 2254 petition, in which Nubine challenged a disciplinary conviction. Nubine
has also moved to proceed in forma pauperis (IFP) on appeal.
        To obtain a COA, Nubine must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). For claims dismissed on


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-20225    Document: 00511231001 Page: 2       Date Filed: 09/13/2010
                                 No. 10-20225

procedural grounds, Nubine must show “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 v. McDaniel, 529
U.S. 473, 484 (2000). To the extent the dismissal was on the merits, he must
“demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Id. “Each component of the
§ 2253(c) showing is part of a threshold inquiry, and a court may find that it can
dispose of the application in a fair and prompt manner if it proceeds first to
resolve the issue whose answer is more apparent from the record and
arguments.” Id. at 485.
      Nubine reiterates his contention that policymakers at the Texas
Department of Criminal Justice are engaged in a conspiracy to violate his rights.
Nubine, however, does not address the district court’s contention that the
conspiracy claim is unexhausted and procedurally barred from federal habeas
review. Nubine has therefore abandoned the issue for purposes of his COA
application. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      Nubine argues that the district court erred by refusing to allow him to
conduct discovery with respect to his habeas claims. He also contends that his
due process rights were violated in connection with his loss of 23 days of good
time credits as a result of his disciplinary conviction. As to the above issues, a
COA is denied because Nubine has failed to make a substantial showing of the
denial of a constitutional right. See Slack, 529 U.S. at 484. Nubine’s motion to
proceed in forma pauperis on appeal is also denied.
      Although the district court treated Nubine’s filings solely as a habeas
petition, Nubine also made allegations regarding a conspiracy to violate his civil
rights and he raised complaints about the temperature in the area he was
confined and the food he was being served. Nubine asserts that his district court
filings set forth claims regarding the conditions of his confinement that were

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                                 No. 10-20225

cognizable under 42 U.S.C. § 1983.          Additionally, he contends that the
allegations as to a conspiracy “should not have gone unanswered” by the district
court. Giving his pro se filings the benefit of liberal construction, see Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993), Nubine is arguing that it was error
for the district court not to have addressed his civil rights claims.
      Where a habeas petition contains both habeas claims and civil rights
claims properly brought pursuant to 42 U.S.C. § 1983, the district court should
separate out the § 1983 claims and address them. See Patton v. Jefferson Corr.
Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998). As the district court did not separate
and address Nubine’s § 1983 claims, we will vacate the judgment to the extent
it dismissed such claims and remand the civil rights claims for further
proceedings.
     COA DENIED AS TO HABEAS CLAIMS; IFP DENIED; DISMISSAL OF
CIVIL RIGHTS CLAIM S VACATED; REMAND FOR FURTHER
PROCEEDINGS AS TO CIVIL RIGHTS CLAIMS.




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