                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 04-40255
                        Conference Calendar



RUBEN ESPINOZA,

                                     Plaintiff-Appellant,

versus

EDMUND BENOIT, Major; LYNN SMITH, Warden; MICHAEL MOORE,
Disciplinary Captain; CONNIE HUNTER, Grievance Investigator;
BRENDA TRAHAN, Substitute Counsel; PEDRO SOTO, Unit
Classification Officer; KELLI WARD, Step II Grievance
Coordinator,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:02-CV-61
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Ruben Espinoza, Texas prisoner # 866201, appeals the

district court’s dismissal of his civil rights action as

frivolous and for failure to state a claim.    See 28 U.S.C.

§ 1915(e)(2)(B).   Espinoza sued the defendants pursuant to 42

U.S.C. §§ 1983, 1985(3), and 1986.   He asserted constitutional

violations arising from his conviction in a disciplinary


     *
       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this opinion should not be published and is not precedent except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. 04-40255
                                  -2-

proceeding for threatening an officer.      The charge subsequently

was expunged, and Espinoza’s good-time credits were restored.

     On appeal, Espinoza argues that the appellees conspired and

discriminated against him because he is Hispanic and that he was

placed in close custody confinement in retaliation for exercising

his right of access to the courts.    These assertions are

conclusional and will not support a constitutional claim.       See

Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).

     Espinoza has not stated a constitutional claim with respect

to his confinement in close custody because such confinement does

not constitute an “atypical and significant hardship . . . in

relation to the ordinary incidents of prison life.”      Sandin v.

Conner, 515 U.S. 472, 484 (1995).    Espinoza 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).

     Espinoza argues that his due process rights were violated

because the charge against him was not adequately investigated

and that he was punished despite the absence of evidence to

support the charge.    Because Espinoza’s good-time credits have

been restored, he has not identified the loss of a protected

liberty interest.    Therefore, he cannot state a due process

claim.   See Sandin, 515 U.S. at 484; Malchi v. Thaler, 211 F.3d

953, 959 (5th Cir. 2000).    Even if Espinoza had a protected

liberty interest, his due process claim would be frivolous
                             No. 04-40255
                                  -3-

because there was some evidence in the record to support the

disciplinary hearing officer’s finding of guilt.     See

Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445,

455-56 (1985).

     Espinoza’s appeal is without arguable merit and is dismissed

as frivolous.    See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.   The district court’s dismissal of the

complaint and the dismissal of this appeal as frivolous both

count as “strikes” under 28 U.S.C. § 1915(g).     See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).    Espinoza is

cautioned that if he accumulates three “strikes,” he will not be

able to proceed in forma pauperis 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).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
