     Case: 10-40810     Document: 00511846209         Page: 1     Date Filed: 05/07/2012




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

                                                                            FILED
                                                                            May 7, 2012
                                       No. 10-40810
                                                                           Lyle W. Cayce
                                                                                Clerk
NORMAN LEE BIRL, JR.,

                                                  Petitioner-Appellant,

v.

RICH THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:10-CV-36


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Norman Lee Birl, Jr., Texas inmate # 591717, appeals the denial of his 28
U.S.C. § 2554 petition raising a challenge to a prison disciplinary proceeding.
Birl contends that his liberty and property interests were implicated by the
denial of procedural due process related to the disciplinary investigation and
charge. His disciplinary conviction resulted in punishment of the loss of 45 days
of commissary privileges, 45 days of cell restriction, a reduction in line class from
S3 to L1, and the loss of 30 days of good-time credit. Birl claimed that these

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-40810

sanctions constituted unlawful deprivations of liberty. Birl also alleged that in
the course of the disciplinary investigation, prison officials confiscated
commissary products from his unit, only some of which have been returned to
him, and placed a hold, yet to be lifted, on his inmate trust account that prevents
him from making commissary purchases. Birl alleges that the confiscation of his
commissary products and the placement of an indefinite hold on his commissary
account deprived him of protected property interests without due process of law.
The district court dismissed Birl’s habeas petition and Birl petitioned this court
for a certificate of appealability (COA). See 28 U.S.C. § 2253(c). A judge of this
court denied COA with respect to Birl’s liberty interest claims but granted Birl
a COA on the issue of whether his property interest claims are cognizable under
28 U.S.C. § 1983.
      Prisoners claims alleging deprivations of property interest without due
process of law are plainly cognizable under § 1983. See, e.g., McCrae v. Hankins,
720 F.2d 863, 869 (5th Cir. 1983), abrogated on other grounds by Hudson v.
Palmer, 468 U.S. 517, 531–33 (1984), as recognized in Augustine v. Doe, 740 F.2d
322, 328 & n.10 (5th Cir. 1984) (explaining that where prisoners are permitted
to possess property, they have a protected interest in their property and § 1983
provides a remedy if prison officials deprive prisoners of this interest absent due
process). We have held that, “in instances in which a petition combines claims
that should be asserted in habeas with claims that properly may be pursued as
an initial matter under § 1983, and the claims can be separated, federal courts
should do so, entertaining the § 1983 claims.” Serio v. Members of La. St. Bd. of
Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987); accord Orellana v. Kyle, 65 F.3d
29, 31 (5th Cir. 1995) (stating that, in such instances, “the district court should
separate the claims and decide the § 1983 claims” (citing Serio, 821 F.2d at
1119)).
      Therefore, it is proper for the district court to consider in the first instance
whether Birl’s property interest claims may proceed under § 1983, subject to the

                                          2
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                                 No. 10-40810

requirements of the Prison Litigation Reform Act of 1995, which “do not apply
to habeas petitions under § 2254.” Carson v. Johnson, 112 F.3d 818, 820 (5th
Cir. 1997). If the district court reaches the merits of Birl’s claims, it will be
proper for that court to determine whether those claims implicate deprivations
of protected property interests and, if so, whether the procedural due process
requirements of Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974), were satisfied.
      We therefore VACATE the district court’s judgment and REMAND for
further proceedings consistent with this opinion.




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