Staten v. Garret, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11536
Summary Calendar
JOHNNY DWAYNE STATEN,
Petitioner-Appellant,
versus
GERALD GARRET, Director Texas Board of Pardons and
Paroles; PRICE DANIEL, SR.; MIKE MCGUIRE, Captain,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CV-597-A
--------------------
April 29, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Johnny Dwayne Staten, Texas prisoner #682286, appeals the
district court’s order construing his petition for a writ of
habeas corpus as a civil complaint under 42 U.S.C. § 1983 and
requiring him to pay the filing fee for such complaint based on
his having at least three "strikes" under 28 U.S.C. § 1915(g).
The district court later dismissed the complaint for failure to
prosecute based on Staten’s failure to comply with its order.

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No. 01-11536
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Staten argues that because he was released to mandatory
supervision rather than parole, he should not be housed in a
halfway house with paroled sex offenders. He argues that he thus
is "illegally incarcerated in law and fact."
The writ of habeas corpus is the appropriate federal remedy
for a state prisoner challenging the fact or duration of his
confinement. Cook v. Texas Dep't of Crim. Justice Transitional
Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994). A 42 U.S.C.
§ 1983 civil rights suit, on the other hand, is the proper
vehicle to attack unconstitutional conditions of confinement and
prison procedures. Carson v. Johnson, 112 F.3d 818, 820 (5th
Cir. 1997).
None of Staten’s claims would entitle him to release from
custody. The district court did not err by construing the
complaint as arising under 42 U.S.C. § 1983. See Carson, 112
F.3d at 820. Carson does not challenge the court’s determination
that he has three "strikes" under the PLRA. Accordingly, any
such argument is waived. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). The judgment of the district court is
AFFIRMED.

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