IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10695

GARY WAYNE WILLOUGHBY,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:18-CV-74

Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.

PER CURIAM:*

In a submission styled as a 28 U.S.C. § 2254 petition, Gary Wayne 

Willoughby, Texas prisoner # 1473082, raised constitutional claims arising out 

of a prison disciplinary proceeding. The district court construed the petition as 

raising only § 2254 claims and denied it. Willoughby now moves this court for 

a certificate of appealability (COA) to appeal the district court’s denial of his 

§ 2254 claims. He also argues in the alternative that the district court failed 

 

* 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

June 14, 2019

Lyle W. Cayce

Clerk

 Case: 18-10695 Document: 00514996286 Page: 1 Date Filed: 06/14/2019
No. 18-10695

2

to consider whether he stated claims for civil rights violations arising under 42 

U.S.C. § 1983. We construe Willoughby’s motion as both a request for a COA 

with respect to any § 2254 claims and an appeal of the dismissal of any civil 

rights claims.1

To obtain a COA, a § 2254 petitioner must make “a substantial showing 

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district 

court has denied claims on the merits, a petitioner must show “that jurists of 

reason could disagree with the district court’s resolution of his constitutional 

claims or that jurists could conclude the issues presented are adequate to 

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 

322, 327 (2003). Willoughby has not made the requisite showing for issuance 

of a COA. See id.

With respect to any civil rights claims, the title a prisoner gives to pro se 

pleadings is not controlling; rather, courts look at the content of the pleading. 

United States v. Santora, 711 F.2d 41, 42 n.1 (5th Cir. 1983). Willoughby may 

have stated civil rights claims that are potentially cognizable under § 1983. 

The district court, however, did not address whether Willoughby stated 

cognizable claims under § 1983. See Serio v. Members of La. St. Bd. of Pardons, 

821 F.2d 1112, 1119 (5th Cir. 1987).

In light of the foregoing, Willoughby’s request for a COA to appeal the 

denial of his § 2254 claims is DENIED. The district court’s dismissal of 

Willoughby’s civil rights claims is VACATED, and the case is REMANDED for 

the district court to consider whether Willoughby has alleged any civil rights 

 

1 To the extent that Willoughby is attempting to appeal the district court’s denial of 

his postjudgment motion for injunctive relief, we lack jurisdiction based on the absence of a 

separate notice of appeal with respect to that ruling. See Sama v. Hannigan, 669 F.3d 585, 

589 (5th Cir. 2012).

 Case: 18-10695 Document: 00514996286 Page: 2 Date Filed: 06/14/2019
No. 18-10695

3

claims cognizable under § 1983. Willoughby’s request for reassignment of the 

case on remand is denied.

 Case: 18-10695 Document: 00514996286 Page: 3 Date Filed: 06/14/2019