               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that this opinion should not be published and is not precedent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.
