Dorsey v. Stine

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-20032 USDC No. CA-H-95-1279

PAUL EARL DORSEY,

Plaintiff-Appellant,

versus

JOHN E. STINE; MARSHALL D. HERKLOT; B. DRIVER; TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas - - - - - - - - - - July 25, 1996 Before DAVIS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Paul Earl Dorsey, Texas prisoner #642562, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action as

frivolous under 28 U.S.C. § 1915(d). For the first time on

appeal, Dorsey argues that prison officials violated certain

prison regulations concerning access to medical treatment.

Because Dorsey raised this claim for the first time on appeal, we

review for plain error. Douglass v. United Serv. Auto. Ass’n, 79

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-20032 - 2 -

F.3d 1415, 1417 (5th Cir. 1996)(en banc). Dorsey’s allegation

that prison officials violated a prison regulation does not

establish a constitutional violation. See Jackson v. Cain, 864

F.2d 1235, 1251 (5th Cir. 1989). Therefore, there is no error,

plain or otherwise.

Dorsey argues that the punishment imposed in the

disciplinary proceedings, the loss of a substantial amount of

good-time credits, was excessive and disproportionate to the

offenses charged. Because Dorsey’s claim calls into question the

duration of his confinement, he must challenge successfully the

decision denying his good-time credits in a habeas corpus action

before bringing a § 1983 action. See Heck v. Humphrey, 114 S.

Ct. 2364, 2372 (1994); Preiser v. Rodriguez, 411 U.S. 475, 500

(1973); Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987).

Dorsey argues that the three disciplinary proceedings

violated his due process rights, that they were not supported by

the evidence, and that he was denied access to the prison

grievance system. We have reviewed the record and the district

court’s opinion and find no abuse of discretion in the dismissal.

See Denton v. Hernandez, 504 U.S. 25, 31-32 (1992).

Dorsey has not raised a nonfrivolous issue for appeal. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Accordingly, his motion for IFP is DENIED and his appeal is

DISMISSED AS FRIVOLOUS. 5th Cir. R. 42.2. Dorsey’s “Application

for Process of Service,” motion for discovery, motion for No. 96-20032 - 3 -

production of documents, motion for interrogatories, motion for

admission, and motion for continuance are also DENIED.

MOTIONS DENIED; APPEAL DISMISSED.