               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-11417


KEIRON DEREK PENIGAR,

                                          Plaintiff-Appellant,


versus

FRANCIS ODOM, Property Officer,

                                          Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 1:01-CV-194
                      --------------------
                          June 6, 2002

                     ON PETITION FOR REHEARING


Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     IT IS ORDERED that the petition for rehearing is GRANTED.

The prior panel opinion is WITHDRAWN, and this opinion is

SUBSTITUTED therefore.

     Kieron Derek Penigar (TDCJ # 721657) appeals the dismissal

as frivolous of his pro se and in forma pauperis (IFP) civil

rights complaint against the property officer at his prison unit


     *
      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this opinion should not be published and is not precedent except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.
                               O R D E R
                             No. 01-11417
                                  -2-

wherein he alleged that not all of his personal property was

returned to him after he was released from administrative

segregation and that the property officer refused to locate or

replace the missing items.    He argues that the defendant’s

intentional deprivation of his family photographs and other

sentimental property is, in effect, cruel and unusual punishment.

     An IFP complaint that lacks an arguable basis in fact or law

may be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).

Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).

Deprivations of property caused by the misconduct of state

officials do not infringe constitutional due process provided

that adequate state post-deprivation remedies exist.     Murphy v.

Collins, 26 F.3d 541, 543 (5th Cir. 1994)(citing Hudson v.

Palmer, 468 U.S. 517 (1984)).    Texas law allows prisoners to seek

administrative relief for property lost or damaged by prison

employees.   See Tex. Gov’t Code § 501.007, 501.008 (Vernon Supp.

1996); Aguilar v. Chastain, 923 S.W.2d 740, 743-44 (Tex. App.

1996).

     We reject Penigar’s attempt to recharacterize his claim as

one implicating the Eighth Amendment because Penigar made

absolutely no suggestion in the district court that the failure

to return the items was intended as punishment.   Penigar’s appeal

is without arguable merit and is therefore DISMISSED as

frivolous.   See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); 5TH CIR. R. 42.2.
                              O R D E R
                            No. 01-11417
                                 -3-

     The dismissal of this appeal and the dismissal as frivolous

by the district court 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).    In addition, Penigar accumulated two strikes

with the dismissal of the appeal in Penigar v. Johnson, No. 01-

11290 (5th Cir. Feb. 20, 2002)(unpublished).    Because he has

accumulated more than three “strikes” under 28 U.S.C. § 1915(g),

Penigar is BARRED from proceeding IFP in any civil action or

appeal unless he is under imminent danger of serious physical

injury.   See 28 U.S.C. § 1915(g); Carson v. Johnson, 112 F.3d

818, 819 (5th Cir. 1997).

     APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.
