                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 23, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-40565
                        Conference Calendar


MIGUEL A. MARTINEZ,

                                    Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; D. STACKS,
Warden, Eastham Unit,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 9:02-CV-213
                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Miguel A. Martinez, Texas prisoner # 889868, appeals the

dismissal of his 42 U.S.C. § 1983 complaint as frivolous and

for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1).

He argues that he has a constitutionally protected liberty

interest in not being classified as a gang member.     He also

argues that the district court erred when it dismissed his




     *
       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this opinion should not be published and is not precedent except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. 03-40565
                                  -2-

complaint without holding a Spears** hearing or allowing him to

conduct discovery.

     Absent extraordinary circumstances, a prisoner does not

have a constitutionally protected liberty interest in his

classification or in remaining free from administrative

segregation.     See Sandin v. Conner, 515 U.S. 472, 485 (1995);

Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).       Thus,

Martinez’s complaint failed to state a claim for relief under

42 U.S.C. § 1983.     See Doe v. Rains County Indep. Sch. Dist.,

66 F.3d 1402, 1406 (5th Cir. 1995).

     A district court is not required to hold a Spears hearing

in every case.    See Beck v. Lynaugh, 842 F.2d 759, 761 (5th Cir.

1988).    Martinez has shown no error in the district court’s

decision to deny his motion for a Spears hearing.     Id.

Additionally, 28 U.S.C. § 1915A(a) directs the district court to

review, “as soon as practicable after docketing,” a prisoner’s

complaint against a governmental officer.     The statute contains

no requirement for allowing the plaintiff to conduct discovery

prior to dismissal.    28 U.S.C. § 1915A.   Martinez’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.

Martinez’s motion for appointment of appellate counsel is denied.




     **
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
                          No. 03-40565
                               -3-

     The district court’s dismissal of Martinez’s complaint and

the dismissal of this appeal as frivolous both count as “strikes”

for purposes of 28 U.S.C. § 1915(g).    See Adepegba v. Hammons,

103 F.3d 383, 387-88 (5th Cir. 1996).    Martinez is cautioned that

if he accumulates three strikes, he will no longer be allowed 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; MOTION DENIED; SANCTIONS WARNING ISSUED.
