     Case: 10-20150     Document: 00511238174          Page: 1    Date Filed: 09/20/2010




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

                                                 FILED
                                                                        September 20, 2010
                                     No. 10-20150
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RICHARD DEAN ROSIN,

                                                   Petitioner-Appellant

v.

MICHAEL D. BARNETT; DELATE D. JONES, Captain of Corrections; CADE
T. CRIPPIN; MRS. MCMILLIAN; SERGEANT SMITH, Sergeant, also known
as Smith,

                                                   Respondents-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-3908


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Richard Dean Rosin, Texas prisoner # 580399, moves this court for a
certificate of appealability (COA) to appeal the district court’s denial of relief,
which he requested in a submisison styled as a 28 U.S.C. § 2254 petition. The
district court construed the petition as raising only § 2254 claims arising out of
Rosin’s prison disciplinary procedures and denied it on the basis that Rosin did



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20150    Document: 00511238174 Page: 2         Date Filed: 09/20/2010
                                 No. 10-20150

not have a liberty interest at stake. Rosin does not dispute the district court’s
decision that he was not entitled to relief under § 2254. Instead, he argues that
he does not seek habeas corpus relief but instead seeks damages and injunctive
relief for civil rights violations under 42 U.S.C. § 1983. We construe Rosin’s
request for a COA as both a request for a COA for any § 2254 claims and an
appeal of the dismissal of his civil rights claims.
      The label attached to a prisoner’s pro se pleading is not controlling; rather,
courts must look to the content of the pleading. United States v. Santora, 711
F.2d 41, 42 n.1 (5th Cir. 1983). Rosin alleged in his petition that his prison
disciplinary proceedings did not meet minimum standards of procedural due
process, a claim that may be cognizable in a § 1983 suit as long as it does not
implicate the validity of the disciplinary conviction or affect the duration of
Rosin’s sentence. See Muhammad v. Close, 540 U.S. 749, 751 (2004). Rosin’s
allegations potentially give rise to two other cognizable § 1983 claims: that
prison officials violated his right under the First Amendment by harassing and
retaliating against him for filing grievances, and that officials were deliberately
indifferent when they forced him to perform work that did not comport with his
medical restrictions, causing him to fall and break his arm. The district court,
however, did not address whether Rosin stated cognizable claims under § 1983.
See Serio v. Member of La. St. Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir.
1987).
      Accordingly, Rosin’s request for a COA to appeal the dismissal of his
§ 2254 claims is DENIED. The district court’s dismissal of Rosin’s civil rights
claims is VACATED, and the case is REMANDED for the district court to
consider whether Rosin has alleged any civil rights claims cognizable under
§ 1983.




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