     Case: 18-10695      Document: 00514996286         Page: 1    Date Filed: 06/14/2019




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

                                      No. 18-10695                          FILED
                                                                        June 14, 2019
                                                                       Lyle W. Cayce
GARY WAYNE WILLOUGHBY,                                                      Clerk

                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:18-CV-74


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       In a submission styled as a 28 U.S.C. § 2254 petition, Gary Wayne
Willoughby, Texas prisoner # 1473082, raised constitutional claims arising out
of a prison disciplinary proceeding. The district court construed the petition as
raising only § 2254 claims and denied it. Willoughby now moves this court for
a certificate of appealability (COA) to appeal the district court’s denial of his
§ 2254 claims. He also argues in the alternative that the district court failed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10695

to consider whether he stated claims for civil rights violations arising under 42
U.S.C. § 1983. We construe Willoughby’s motion as both a request for a COA
with respect to any § 2254 claims and an appeal of the dismissal of any civil
rights claims. 1
       To obtain a COA, a § 2254 petitioner must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district
court has denied claims on the merits, a petitioner must show “that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). Willoughby has not made the requisite showing for issuance
of a COA. See id.
       With respect to any civil rights claims, the title a prisoner gives to pro se
pleadings is not controlling; rather, courts look at the content of the pleading.
United States v. Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983). Willoughby may
have stated civil rights claims that are potentially cognizable under § 1983.
The district court, however, did not address whether Willoughby stated
cognizable claims under § 1983. See Serio v. Members of La. St. Bd. of Pardons,
821 F.2d 1112, 1119 (5th Cir. 1987).
       In light of the foregoing, Willoughby’s request for a COA to appeal the
denial of his § 2254 claims is DENIED.               The district court’s dismissal of
Willoughby’s civil rights claims is VACATED, and the case is REMANDED for
the district court to consider whether Willoughby has alleged any civil rights




       1 To the extent that Willoughby is attempting to appeal the district court’s denial of
his postjudgment motion for injunctive relief, we lack jurisdiction based on the absence of a
separate notice of appeal with respect to that ruling. See Sama v. Hannigan, 669 F.3d 585,
589 (5th Cir. 2012).


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                               No. 18-10695

claims cognizable under § 1983. Willoughby’s request for reassignment of the
case on remand is denied.




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