IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20703

KIRBY DECKER,

Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-2346

Before SMITH, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Kirby Decker, Texas prisoner # 594703, on the form to be used for filing 

a 28 U.S.C. § 2254 application, alleged that (1) he was placed in solitary 

confinement without an adequate hearing and in contravention of other due 

process requirements, (2) he was denied an impartial hearing officer and 

retaliated against so that he would accept mental health treatment, (3) he was 

denied access to the day room, television, and the recreational yard without a 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 10, 2014

Lyle W. Cayce

Clerk

 

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No. 13-20703

hearing, and (4) his solitary confinement imposed an atypical hardship on

prison life. The district court determined that the claims challenged the 

conditions of Decker’s confinement and therefore construed the claims as civil 

rights claims. The court dismissed the habeas petition, and insofar as Decker’s

claims were best construed as arising under 42 U.S.C. § 1983, the court 

dismissed the suit without prejudice because Decker had accumulated at least 

three strikes pursuant to 28 U.S.C. § 1915(g) and because he had not shown 

that he was in imminent danger of serious physical injury. Decker timely 

appealed and requests a certificate of appealability (COA). 

A COA is required to appeal a final order in a § 2254 proceeding. 28 

U.S.C. § 2253(c)(1)(A). To obtain a COA, Decker must show “a substantial 

showing of the denial of a constitutional right.” § 2253(c)(2); see Slack v. 

McDaniel, 529 U.S. 473, 483-84 (2000). When the district court’s denial of 

relief is based on procedural grounds, a COA may not issue unless the prisoner 

shows that “jurists of reason would find it debatable whether the petition 

states a valid claim of the denial of a constitutional right, and that jurists of 

reason would find it debatable whether the district court was correct in its 

procedural ruling,” Slack, 529 U.S. at 484, or that the issue deserves 

encouragement to proceed further, Miller-El v. Cockrell, 537 U.S. 322, 327 

(2003).

Decker argues that the district court erred in construing his claims as 

civil rights claims and in doing so without giving him notice and an opportunity 

to amend or withdraw the filing. Decker has failed to make the requisite COA 

showing. Id. Accordingly, his request for a COA is DENIED. 

Insofar as Decker is appealing the dismissal of the § 1983 complaint

without prejudice, no COA is necessary, but he has not challenged the district 

court’s ruling that he is barred under § 1915(g) from proceeding in forma 

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No. 13-20703

pauperis in an § 1983 proceeding absent a showing that he is under imminent 

danger of serious physical injury. As the appeal from the dismissal of his 

§ 1983 complaint is without arguable merit and thus frivolous, see Howard v. 

King, 707 F.2d 215, 219-20 (5th Cir. 1983), it is DISMISSED. See 5TH CIR.

R. 42.2. His motion to recuse Judge Garza is DENIED.

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