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

                                                FILED
                                                              September 18, 2009
                                No. 08-40135
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

JEROME KEITH ANTONE

                                           Plaintiff-Appellant

v.

TIMOTHY M PRESCHEL; ASHLEY HADNOT, Correctional Officer III; LEROY
J BAILEY, JR, Captain; RICHARD K ALFORD, Warden; BILLY HIRSCH,
Warden; LLOYD C MASSEY, Warden; TERESA MCNEIL

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 9:07-CV-284


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jerome Keith Antone, Texas prisoner # 649602, sued Texas Department
of Criminal Justice (TDCJ) officials under 42 U.S.C. § 1983, arguing that his
constitutional rights were violated when he was found guilty in a prison
disciplinary hearing of possession of contraband that did not belong to him.
Antone was punished with 45 days of cell and recreation restrictions, a reduction


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-40135

in classification status from “S3” to “Line I,” and the loss of 30 days of good time
credits.
      The district court dismissed Antone’s complaint as frivolous under 28
U.S.C. § 1915A(b). A complaint is “frivolous” if it lacks “an arguable basis in law
or fact.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). “A complaint lacks
an arguable basis in law if it is based on an indisputably meritless legal theory,
such as if the complaint alleges the violation of a legal interest which clearly
does not exist.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) (internal
quotation marks and citations omitted). A plaintiff fails to state a claim upon
which relief can be granted when the complaint does not contain “‘enough facts
to state a claim to relief that is plausible on its face.’” In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
      “To plead a constitutional claim for relief under § 1983, [a plaintiff must]
allege a violation of a right secured . . . by the Constitution or laws of the United
States and violation of that right by one or more state actors.” Johnson v. Dallas
Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). Because Antone’s murder
conviction disqualifies him from release on mandatory supervision, see T EX.
G OV’T C ODE § 508.149(a)(2), the district court did not err in finding that Antone
failed to state a due process claim with respect to the loss of his good time
credits. See Arnold v. Cockrell, 306 F.3d 277, 278-79 (5th Cir. 2002). Likewise,
Antone failed to state a claim with respect to his punishment of 45 days of cell
and recreation restrictions and a reduction in classification status from “S3” to
“Line I” because this punishment did not constitute “atypical and significant
hardship” relative to ordinary prison life. Sandin v. Conner, 515 U.S. 472, 484
(1995); see also Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988).
      The district court’s dismissal of Antone’s § 1983 lawsuit as frivolous
pursuant to § 1915A(b) and our dismissal of this appeal as frivolous both count
as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

                                         2
                                 No. 08-40135

F.3d 383, 387-88 (5th Cir. 1996). Antone also accumulated strikes when two
other cases were dismissed as frivolous. Antone v. Neil, No. 9:07-CV-283 (E.D.
Tex. Feb. 27, 2008); Antone v. Alford, No. 9:07-CV-285 (E.D. Tex. Feb. 27, 2008);
see Adepegba, 103 F.3d at 385-87. As Antone has now accumulated at least
three strikes, he is barred from proceeding in forma pauperis while he is
incarcerated or detained in any facility unless he “is under imminent danger of
serious physical injury.” § 1915(g).
      APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.




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