Yerger v. Fox, et al

No. 99-11087
-1-
* 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that this opinion should not be published and is not precedent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. 99-11087
Conference Calendar
DAVID S. YERGER,
Plaintiff-Appellant,
versus
EARL E. FOX; ROBERT J. EASON; LORIE
L. WILLS; EARL S. ANDERSON, JR.;
CYNTHIA J. WESSLING,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:98-CV-69
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April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
David S. Yerger, Texas prisoner # 616598, appeals from the
district court’s dismissal as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) of his civil rights complaint brought under 42
U.S.C. § 1983. Yerger argues that he was wrongly convicted in a
prison disciplinary hearing of making a threat to a guard. He
argues that, as a result of his conviction, he lost good-time
credits, and his custodial classification was adversely affected.

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No. 99-11087
-2-
Yerger’s claims are without merit. Yerger does not have a
protected liberty or property interest in his custodial
classification. See Wilson v. Budney, 976 F.2d 957, 958 (5th
Cir. 1992). Moreover, he failed to make a showing in the
district court that his “conviction” at the disciplinary
proceeding was reversed, expunged, or otherwise declared invalid.
Any § 1983 challenge to the loss of his good-time credits
therefore is barred. See Edwards v. Balisok, 520 U.S. 641, 648
(1997); Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
For the first time in his brief on appeal, Yerger argues
that the false disciplinary report was racially motivated in
violation of his rights under the Fourteenth Amendment. He also
states that the disciplinary charge violated his First Amendment
right of free speech. Yerger did not make these two allegations
in his pleadings in the district court. As such, they may not be
raised on appeal for the first time. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (“‘The Court will
not allow a party to raise an issue for the first time on appeal
merely because a party believes that he might prevail if given
the opportunity to try a case again on a different theory.’”)
(citation omitted), cert. denied, 120 S. Ct. 982 (2000).
Yerger’s appeal is without arguable merit and therefore is
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
The appeal is DISMISSED. 5TH CIR. R. 42.2.

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