IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41504
Conference Calendar
RICKY G. MORENO,
Plaintiff-Appellant,
versus
TAMMY BUNTON; MITCHELL BRADSHAW; JOHN DOE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-466
--------------------
August 24, 1999
Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.
PER CURIAM:*
Ricky G. Moreno, Texas prisoner #501109, appeals from the
dismissal of his civil rights action as frivolous. Moreno argues
that the district court erred by making improper factual findings
when dismissing his complaint as frivolous; that the district
court erred by dismissing the complaint without giving him an
opportunity to amend it or to conduct discovery; that prison
officials violated the Due Process Clause at his disciplinary
hearing by not allowing him to call witnesses; that counsel
substitute violated the Due Process Clause by failing to perform
*
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that this opinion should not be published and is not precedent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.
No. 98-41504
-2-
adequately at his disciplinary hearing; that the “John Doe”
defendant violated the Due Process Clause by failing to correct
the violations at Moreno’s disciplinary hearing; that there was
no evidence to support the disciplinary charge against him; that
the hearing officer violated prison rules by the way he conducted
the disciplinary hearing; and that prison officials violated the
Due Process Clause and prison rules by disciplining him for
refusing to accept a housing assignment with a black prisoner.
First, the punishment Moreno received in his disciplinary
hearing, 45 days’ recreation and commissary restriction, did not
impose atypical and significant hardship on Moreno in relation to
the ordinary incidents of prison life. See Sandin v. Conner, 515
U.S. 472, 484 (1995)(internal citations omitted). Second, the
failure of prison administrators to follow prison rules and
regulations does not, without more, give rise to a constitutional
violation. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).
Moreno has failed to demonstrate plain error regarding his
contentions that prison officials violated prison rules,
contentions that he raises for the first time on appeal.
Moreno’s appeal is without arguable merit and is frivolous.
Accordingly, the appeal is DISMISSED. 5TH CIR. R. 42.2. The
dismissal of this appeal as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g). We caution Moreno that once he
accumulates three strikes, he may not proceed in forma pauperis
in any civil action or appeal filed while he is in prison unless
he is under imminent danger of serious physical injury. See 28
U.S.C. § 1915(g).
No. 98-41504
-3-
APPEAL DISMISSED; WARNING ISSUED.