           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 16, 2009
                                     No. 09-40528
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

SHAWN K. ODNEAL,

                                                   Plaintiff-Appellant

v.

R. HINOJOSA, Correctional Officers; C. PUENTIS, Captain,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:09-CV-70


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Shawn K. Odneal, Texas prisoner # 917382, appeals the
dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) (failure to state a claim on which relief may be
granted) and § 1915A(b)(1) (frivolous, malicious, or failure to state a claim upon
which relief may be granted). In that regard, Odneal’s punishments of 45 days




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40528

of recreation restriction, 45 days of commissary restriction, and demotion in
time-earning class were held not to implicate his due process rights, according
to Sandin v. Conner, 515 U.S. 472, 486 (1995). Odneal maintains Sandin could
not be relied upon because he was found guilty in a disciplinary hearing without
any evidence of guilt and not given a written statement of the evidence.
      A § 1915(e)(2)(B)(ii) dismissal is reviewed de novo. E.g., Black v. Warren,
134 F.3d 732, 733-34 (5th Cir. 1998); Geiger v. Jowers, 404 F.3d 371, 373 (5th
Cir. 2005). In Sandin, the Court held: a prisoner’s protected liberty interests are
“generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life”.
Sandin, 515 U.S. at 484 (internal citations omitted).           Along that line,
punishments such as loss of recreation and commissary privileges, cell
restriction, and change in time-earning status do not implicate due process
concerns. See Malchi v. Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000); see also
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Therefore, Odneal’s
punishments “did not present the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest”. Sandin, 515 U.S. at
486 (involving disciplinary segregation for 30 days as punishment for violating
prison disciplinary rules).
      Odneal has not identified a constitutionally protected liberty interest. In
short, his claims of due process violations at his hearing, even if true, failed to
state a claim for relief under § 1983. Accordingly, he has not shown that the
district court erred in dismissing his due process claims for failure to state a
claim.
      Further, Odneal’s appeal is without arguable merit and is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5 TH C IR. R. 42.2.

                                          2
                                 No. 09-40528

      The dismissal of this appeal as frivolous and the district court’s dismissal
for failure to state a claim each count as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Odneal is cautioned that, once he accumulates three strikes, he may not 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 § 1915(g).
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.




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