Case: 10-20351 Document: 00511407734 Page: 1 Date Filed: 03/11/2011




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

                                                 FILED
                                                                           March 11, 2011
                                     No.10-20351
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RICHARD DEAN ROSIN,

                                                   Petitioner-Appellant

v.

RICK THALER, 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. 4:10-CV-114


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Richard Dean Rosin, Texas prisoner # 580399, moves this court for a
certificate of appealability (COA) to appeal the district court’s denial of relief,
which he requested in a submission styled as a 28 U.S.C. § 2254 application.
The district court construed the application as raising only § 2254 claims arising
out of a prison disciplinary proceeding and denied it on the basis that Rosin did
not have a liberty interest at stake. Rosin does not dispute the district court’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20351

decision that he was not entitled to relief under § 2254. Instead, he argues that
he does not seek relief under § 2254 but wishes to bring claims for civil rights
violations under 42 U.S.C. § 1983. We construe Rosin’s request for a COA as
both a request for a COA for any § 2254 claims and an appeal of the dismissal
of any civil rights claims.
      The label attached to a prisoner’s pro se pleading is not controlling; rather,
courts must look to the content of the pleading. United States v. Santora, 

, 42 n.1 (5th Cir. 1983). In his pleading, Rosin sought damages and
injunctive relief alleging, among other things, that prison officials had placed a
hold on his trust account and had found him guilty of a disciplinary violation
without due process. Where prisoners are permitted to possess property, they
have a protected interest in their property and § 1983 provides a remedy if
prison officials deprive prisoners of this interest absent due process. McCrae v.
Hankins, 

, 869 (5th Cir. 1983), abrogated on other grounds by
Hudson v. Palmer, 

, 531-33 (1984), as recognized in Augustine v.
Doe, 

, 328 & n.10 (5th Cir. 1984). A prisoner has a protected
property interest in the funds in his prison account. Eubanks v. McCotter, 

, 792-94 (5th Cir. 1986); Brewer v. Collins, 

, 823 (Tex.
App. 1993).    Moreover, Rosin’s request for damages on the basis that his
disciplinary proceedings did not meet minimum standards of procedural due
process may be cognizable in a § 1983 suit as long as it does not implicate the
validity of the disciplinary conviction or affect the duration of Rosin’s sentence.
See Muhammad v. Close, 

, 751 (2004) (“Challenges to the validity
of any confinement or to particulars affecting its duration are the province of
habeas corpus; requests for relief turning on circumstances of confinement may
be presented in a § 1983 action.” (citations omitted)).
      Rosin also sought to amend his pleading to add additional claims under
§ 1983, including that prison officials retaliated against him for filing grievances
and that officials denied him access to the courts to pursue a personal-injury

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                                  No. 10-20351

claim. Rosin was entitled to amend his pleading once as a matter of right
because the respondent had not yet filed a responsive pleading. See F ED. R. C IV.
P. 15(a); Barksdale v. King, 

, 746-47 (5th Cir. 1983) (applying Rule
15(a) to § 1983 complaint where no responsive pleading had been filed).
Accordingly, it was an abuse of discretion to fail to permit the amendment. See
Horton v. Cockrell, 

, 402 (5th Cir. 1996) (finding abuse of discretion
based on denial of plaintiff’s first motion to amend where no responsive pleading
had been filed).
      Accordingly, Rosin’s request for a COA to appeal the dismissal of his
§ 2254 claims is DENIED. The district court’s dismissal of Rosin’s civil-rights
claims is VACATED, and the case is REMANDED for the district court to permit
Rosin to amend his pleading and to consider whether he has alleged any civil-
rights violations cognizable under § 1983. Rosin’s motion for appointment of
counsel is DENIED.




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