     Case: 10-30421 Document: 00511279121 Page: 1 Date Filed: 10/29/2010




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

                                                 FILED
                                                                          October 29, 2010
                                     No. 10-30421
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ANTONIO TYSON,

                                                   Plaintiff-Appellant

v.

ROBERT C. TANNER, Warden, Rayburn Correctional Center; JAMES
LEBLANC, Secretary; UNIDENTIFIED PARTIES,

                                                   Defendants-Appellees


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:10-CV-132


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Antonio Tyson, Louisiana prisoner # 331834, appeals the dismissal of his
42 U.S.C. § 1983 complaint. In the district court, Tyson argued that (1) the
retroactive application of L A. R EV. S TAT. A NN. 15:571.4(B)(4) violates the Ex Post
Facto and Contract Clauses of the Louisiana and federal constitutions; (2) the
application of L A. R EV. S TAT. A NN. 15:1186(B)(2) to his state suit violates his
rights to due process, equal protection, and access to the courts under the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30421

Louisiana and federal constitutions; (3) “Various Disciplinary Boards” denied
him due process in the prison disciplinary proceedings that resulted in the
forfeiture of good time credit, and (4) the defendants failed to respond to
grievances complaining of constitutional violations by their employees. For the
first time on appeal, Tyson argues that Louisiana’s statutory scheme regarding
good time credit constitutes an unconstitutional delegation of legislative
authority to the executive branch in violation of the separation of powers
doctrine under the Louisiana and federal constitutions.
      The district court correctly determined that Tyson’s claims for relief based
on the retroactive application of L A. R EV. S TAT. A NN. 15:571.4(B)(4) are not
cognizable in a § 1983 action until the relevant convictions have been reversed.
A favorable determination on the constitutional issue would necessarily
demonstrate the invalidity of the prior forfeitures of good time credit. See
Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); Clarke v. Stalder, 154 F.3d 186,
189-91 (5th Cir. 1998).
      Tyson does not challenge the district court’s determination that he failed
to name a proper defendant with respect to his constitutional challenge to L A.
R EV. S TAT. A NN . 15:1186(B)(2). Although we have remanded a § 1983 case to
allow a plaintiff to add a proper defendant if the issue is first raised on appeal,
Tyson had an opportunity to amend his complaint after the magistrate judge
determined that his complaint lacked a proper defendant. Tyson did not add a
proper defendant and does not argue on appeal that he should be given another
opportunity to do so. To the contrary, Tyson does not challenge the district
court’s determination that he failed to name a proper defendant, waiving
consideration of this issue. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
      Tyson does not challenge the district court’s determination that “Various
Disciplinary Boards” is not a proper defendant with respect to his claims that he

                                        2
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                                  No. 10-30421

was denied him due process in the prison disciplinary proceedings. Tyson also
does not challenge the district court’s determination that he failed to state a
claim against the other defendants for failing to correct various defects in the
disciplinary proceedings. Therefore, Tyson has waived consideration of whether
these claims were properly dismissed. See Yohey, 985 F.2d at 225; Brinkmann,
813 F.2d at 748.
      We decline to consider Tyson’s separation of powers claim because it is
raised for the first time on appeal. See Hannah v. United States, 523 F.3d 597,
600 n.1 (5th Cir. 2008).
      The judgment of the district court is AFFIRMED. Tyson’s motion for
appointment of counsel is DENIED. See Schwander v. Blackburn, 750 F.2d 494,
502-03 (5th Cir. 1985).
      Tyson is warned that the district court’s dismissal of his action as frivolous
and for failure to state a claim counts as one strike under 28 U.S.C. § 1915(g).
Tyson is cautioned that if he accumulates three strikes, he will not be able to
proceed in forma pauperis 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 Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996); § 1915(g).




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