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

                                                                            FILED
                                                                         October 27, 2008
                                     No. 08-50079
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

BRIAN K MCPHERSON

                                                  Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:07-CV-990


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Brian K. McPherson, Texas prisoner # 390173, moves for a certificate of
appealability (COA) and to proceed in forma pauperis (IFP) to appeal the denial
of his 28 U.S.C. § 2554 petition challenging disciplinary procedure
# 20070275873. He argues that (1) although he lost no previously-earned good-
time credits, the mandatory language and substantive predicates of the TDCJ-ID
regulations created a liberty interest entitling him to procedural due process


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-50079

protections during his disciplinary proceeding and (2) he had a property interest
in the craftshop tools confiscated as a result of his disciplinary conviction, which
deprivation also required that he be afforded procedural due process protections.
      With regard to his liberty interest claim, McPherson has not shown “that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). With
regard to his property interest claim, the district court did not address that issue
below. We therefore DENY COA in part, GRANT COA in part, GRANT IFP,
VACATE the district court’s judgment and REMAND for the district court to
consider only the property interest claim. See Whitehead v. Johnson, 157 F.3d
384, 388 (5th Cir. 1998). The district court should consider whether McPherson
has stated a cognizable claim under either 42 U.S.C. § 1983 or § 2254 and
whether the procedural due process requirements of Wolff v. McDonnell, 418
U.S. 539, 564-66 (1974), were satisfied.




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