                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                               No. 94-20771
                             Summary Calendar


                           EDUARDO M. BENAVIDES,

                                                      Plaintiff-Appellant,


                                    VERSUS


               JACK B. PURSLEY and JAMES (JIM) LYNAUGH,

                                                      Defendants-Appellees.




             Appeal from the United States District Court
                  For the Southern District of Texas
                            (CA-H-91-1971)
                         (September 25, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

      Eduardo Benavides, a Texas Department of Criminal Justice

inmate proceeding in forma pauperis filed a § 1983 civil rights

complaint.      Following    a    Spears   hearing,    at   which   Benavides
abandoned all claims except his claim of retaliation resulting from

the   confiscation    of    his    personal   property      including   legal

materials, the district court dismissed his claim as frivolous



  Local Rule 47.5 provides: “The publication of opinions that have
no precedential value and merely decide particular cases on the
basis of well-settled principles of law imposes needless expense on
the public and burdens on the legal profession.” Pursuant to that
Rule, the Court has determined that this opinion should not be
published.
under § 1915(d).    Benavides moved for reconsideration which was

denied by another judge of the district court to whom the case had

been reassigned.    Benavides then moved for reconsideration of the

denial of his reconsideration motion.       It was likewise denied by

the second judge.      Benavides appeals the denial of his second

motion to reconsider.    We affirm.

     Appellant’s motion was timely under Rule 60(b).     Harcon Barge

Co. v. D&G Boat Rentals, 784 F.2d 665, 667 (5th Cir.) (en banc),

cert. denied, 479 U.S. 930 (1986).       We review using the abuse of

discretion standard.    Carimi v. Royal Carribean Cruise Line, Inc.,

959 F.2d 1344, 1345 (5th Cir. 1992).

     Relying on Federal Rule of Civil Procedures 63, Benavides

argues that the second district judge was without authority to rule

on his motion because it was the first district judge who dismissed

his suit.   We disagree.      Federal Rule of Civil Procedure 63

concerns only the      inability of a judge to continue a trial or

hearing that is in progress.          It has nothing to do with the

transfer of cases from the docket of one district judge to another.

     Benavides’ property was confiscated but it was returned to him

within thirty days.    He made no showing of a permanent deprivation

therefore the district court’s decision to deny Rule 60(b) relief

on this basis was not an abuse of discretion.     The dismissal under

1915(d) was therefore also appropriate.

     The same is true of Benavides’ contention that the temporary

confiscation of his legal materials interfered with the prosecution

of a malpractice claim he had brought against his attorney and with


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his   habeas   petition.    Appellant   has   not   shown   any   specific

prejudice resulting from the confiscation and without such              a

showing he is unable to establish that Rule 60(b) relief was

warranted.

      Appellant next contends that the district court erred when it

did not specifically address his contention that § 1915(d) is

unconstitutional because it treats indigents differently from non-

indigents.     In Neitzke v. Williams, 490 U.S. 319 (1989) the Supreme

Court considered § 1915(d) and noted that it was designed to ensure

that indigent litigants have meaningful access to the federal

courts, and that the judiciary was left with the task of “giving

content to § 1915(d)’s definite objectives.”         We find nothing in

this record to support the claim of unconstitutionality.            While

indigents may indeed be treated differently than non-indigents, the

indigents are given an advantage in the prosecution of their

claims.

      Finally, Benavides argues that the district court erred in not

allowing him to amend his pleadings.          The district court did,

however,     conduct a Spears hearing to allow him to augment his

pleadings and the failure to permit further amendment thereafter is

no abuse of discretion.

      AFFIRMED.




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