                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 16, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-10172
                         Summary Calendar


ASENCION GAONA,

                                      Plaintiff-Appellant,

versus

M. C. ERWIN, IV; T. HENDRICK; BRUCE E. ZELLER,

                                      Defendants-Apellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 2:05-CV-180
                      --------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Asencion Gaona, Texas prisoner # 656950, filed an in forma

pauperis (IFP) action under 42 U.S.C. § 1983 against prison

officials alleging that they violated his rights under the Due

Process Clause.   His claims arose from a prison disciplinary

proceeding that resulted in a change to his classification

status, the loss of his opportunity to seek parole, the loss of

his recreation and commissary privileges, and the confiscation of

money and office supplies from him.    The district court

determined that Gaona’s claims were frivolous and that the

     *
       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this opinion should not be published and is not precedent except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. 06-10172
                                  -2-

complaint failed to state a claim upon which relief could be

granted.

     According to Gaona, the complaint stated a nonfrivolous

claim for relief because it alleged that officials acting under

the color of state law deprived him of liberty and property

interests in violation of the Due Process Clause.     He stresses

that the complaint asserted that prison officials deprived him of

his classification status, parole, and property.     He also notes

that the district court failed to address his property claim.

     The dismissal of a prisoner’s in forma pauperis (IFP)

complaint for failure to state a claim is reviewed de novo, and

the standard governing dismissals under Federal Rule of Civil

Procedure 12(b)(6) applies.     Ruiz v. United States, 160 F.3d 273,

274-75 (5th Cir. 1998).     The dismissal of an IFP complaint as

frivolous is typically reviewed for abuse of discretion; however,

where the district court also finds that the complaint fails to

state a claim, as here, it is reviewed de novo.     Geiger v.

Jowers, 404 F.3d 371, 373 (5th Cir. 2005).     The complaint is

frivolous where it “lacks an arguable basis in law or fact.”        Id.

     Gaona’s claim that he was denied due process when his

classification status was changed is “indisputably meritless,” as

inmates do not have a protected liberty or property interest in

their custodial classification.     See Harper v. Showers, 174 F.3d

716, 719 (5th Cir. 1999).    Likewise, he has no due process claim

arising from the loss of an opportunity to seek parole.     It is
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                                    -3-

“entirely speculative” whether a Texas prisoner will obtain

release on parole because the decision is discretionary.           Madison

v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).         Accordingly, the

loss of the opportunity to seek parole does not implicate the Due

Process Clause.     See id.    In addition, Gaona’s loss of

recreational and commissary privileges “[does] not represent the

type of atypical, significant deprivation in which a state might

create a liberty interest.”       Id.

     The complaint also failed to state claim for the deprivation

of property without due process.        Where a state provides an

adequate postdeprivation remedy for the confiscation of prisoner

property, an inmate does not have a cognizable claim under § 1983

for the loss of his property.        Murphy v. Collins, 26 F.3d 541,

543-44 (5th Cir. 1994).       The Texas tort of conversion is an

adequate postdeprivation remedy for the wrongful confiscation of

prisoner property.     Id. at 543.      Accordingly, Gaona’s property

claim is not actionable under § 1983.         See id. at 543-44.

     Gaona’s appeal is without arguable merit and is frivolous.

The appeal is dimissed.       See 5TH CIR. R. 42.2.   The district

court’s dismissal of Gaona’s action and this court’s dismissal of

his appeal each count as a strike against him for purposes of 28

U.S.C. § 1915(g).     See Adepegba v. Hammons, 103 F.3d 383, 387-88

(5th Cir. 1996).    If he accumulates three strikes, he may no

longer proceed in forma pauperis in any civil action or appeal

filed while he is incarcerated or detained in any facility unless
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                               -4-

he is under imminent danger of serious physical injury.   See

§ 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
