                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS               October 17, 2003
                         FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                                No. 03-50797
                              Summary Calendar


                           RICHARD WILLIAM PAYNE,

                                                    Petitioner-Appellant,

                                     versus

         DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
             JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                        Respondent-Appellee.



             Appeal from the United States District Court
                   for the Western District of Texas
                            No. SA-03-CV-289


Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

            Richard William Payne, a Texas prisoner (# 620984), has

filed in this court a certificate of appealability (“COA”) to

appeal    the   district   court’s    order   denying    his   habeas   corpus

petition, purportedly filed under 28 U.S.C. § 2254.            He also seeks

to proceed in forma pauperis (“IFP”) on appeal.




     *
        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that this opinion should not be published and is not precedent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.
          In his petition, Payne alleged that his constitutional

rights had been violated in connection with a prison disciplinary

proceeding   which   had   resulted       in   30   days   of   commissary   and

recreation restrictions being imposed upon Payne.                Payne did not

attack his underlying criminal conviction and he did not seek

either to be released from confinement or an order that the

duration of his prison sentence be shortened. He apparently sought

only an order overturning the disciplinary conviction.               Because a

favorable determination of Payne’s claims would not automatically

entitle him to accelerated release, the appropriate vehicle for his

claims was a civil rights action under 42 U.S.C. § 1983.                     See

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Carson v. Johnson,

112 F.3d 818, 820-21 (5th Cir. 1997).           Accordingly, Payne does not

need a COA to proceed with this appeal, and his application for a

COA is DENIED as unnecessary.

          Although Payne filed this action as a 28 U.S.C. § 2254

petition and the district court did not explicitly construe it

otherwise, the district court denied Payne leave to proceed IFP on

appeal on the ground that his appeal was not taken in good faith,

apparently pursuant to provisions of the Prison Litigation Reform

Act (“PLRA”).   The PLRA does not apply to habeas actions.                   See

Sonnier v. Johnson, 161 F.3d 941, 943 (5th Cir. 1998).                Nonethe-

less, as discussed above, Payne’s action is in the nature of a

civil rights action and should be treated as such.                  A district

court may certify under 28 U.S.C. § 1915(a)(3) and FED. R. APP.

                                      2
P. 24(a) that an appeal is not taken in good faith and deny IFP

accordingly,    which    requires          the    litigant       either   to    pay   the

appellate   filing      fee    or     to    challenge       the    district      court’s

certification   decision.           Baugh        v.    Taylor,   117   F.3d    197,   202

(5th Cir. 1997).

            A review of Payne’s substantive claims reveals that his

appeal, if construed as a civil rights action, is without arguable

merit and frivolous.           See Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983).      The penalties imposed upon Payne following his

disciplinary conviction — commissary and recreation restrictions —

do not implicate a liberty interest under the Due Process Clause.

See Sandin v. Conner, 515 U.S. 472. 484 (1995); Malchi v. Thaler,

211 F.3d 953, 958-59 (5th Cir. 2000).

            Because the appeal is frivolous, we DENY Payne’s motion

to proceed IFP and DISMISS his appeal as frivolous.                           See Baugh,

117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.                          The dismissal of

this appeal as frivolous counts as a “strike” for purposes of

28 U.S.C. § 1915(g).           See Adepegba v. Hammons, 103 F.3d 383,

388 (5th Cir. 1996).          Payne already has one strike based on the

dismissal of a prior civil rights complaint as frivolous and for

failure to state a claim, and this court’s dismissal of Payne’s

appeal thereof for lack of jurisdiction.                     See Payne v. Johnson,

No. C-01-CV-193      (S.D.     Tex.    May       13,    2002);    Payne   v.    Johnson,

No. 02-40910 (5th Cir. Jan. 9, 2003).                   Payne is cautioned that if

he accumulates three strikes, he will not be permitted to proceed

                                            3
IFP 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 28 U.S.C. § 1915(g).

          Payne has filed a motion to “dismiss” or vacate the

district court’s order assessing an initial partial filing fee.

The motion is not well-taken, see Morgan v. Haro, 112 F.3d 788, 789

(5th Cir. 1997) (district court is to assess PLRA filing fees in

the first instance), and is DENIED.

          COA   DENIED   AS   UNNECESSARY;   IFP   DENIED;   MOTION   TO

“DISMISS” FILING-FEE ORDER DENIED; APPEAL DISMISSED AS FRIVOLOUS;

THREE-STRIKES BAR WARNING ISSUED.




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