                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 10, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-10663
                           Summary Calendar



JAMES LEE MALENA,

                                      Plaintiff-Appellant,

versus

AL RICHARD,

                                      Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:02-CV-2258-G
                      --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     James Lee Malena (Malena), Texas prisoner # 267290, seeks

leave to proceed in forma pauperis (IFP) to appeal the district

court’s dismissal of his 42 U.S.C. § 1983 action for failure to

state a claim.    In his complaint, Malena asserted that Al Richard

(Richard) violated his due process rights by not providing him

with a disciplinary hearing before violations, occurring at a

halfway house, were reported to parole authorities.




     *
       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this opinion should not be published and is not precedent except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. 04-10663
                                  -2-

     By moving for leave to proceed IFP, Malena is challenging

the district court’s certification that his appeal was not taken

in good faith because it is frivolous.      See Baugh v. Taylor, 117

F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED.

R. APP. P. 24(a)(5).   However, Malena has not demonstrated any

nonfrivolous ground for appeal.

     In Morrissey v. Brewer, 408 U.S. 471, 485-89 (1972) the

Supreme Court established that in order to comply with due

process, a parolee must be afforded a preliminary probable cause

hearing when he is arrested for a parole violation and a more

through revocation hearing within a reasonable time after he is

taken into custody.    Malena does not contend that he was denied

due process in the form of a preliminary hearing post-arrest for

violating a condition of his parole.    He cites no authority in

support of his contention that he was entitled to a hearing prior

to being arrested for the parole violation.     Because the loss of

liberty as a parole violator does not occur until the parolee is

placed under arrest, Malena has failed to state a due process

violation against Richard.    See Cook v. United States Att’y Gen.,

488 F.2d 667, 669-71 (5th Cir. 1974); Deveny v. United States Bd.

of Parole, 565 F.2d 875, 878 (5th Cir. 1978).

     Accordingly, Malena’s IFP motion is DENIED, and the appeal

is DISMISSED as frivolous.    See Baugh, 117 F.3d at 202; 5TH CIR.

R. 42.2.   Both the district court’s dismissal and this court’s

dismissal of the instant appeal count as strikes for purposes of
                            No. 04-10663
                                 -3-

28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103 F.3d 383, 387-

88 (5th Cir. 1996).    Malena is CAUTIONED that if he accumulates

three strikes under 28 U.S.C. § 1915(g), he will not be able to

proceed IFP in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury.    See 28 U.S.C.

§ 1915(g).

     IFP DENIED; APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
