                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 11, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-30358
                        Conference Calendar



DEREK BERNSTINE,

                                    Plaintiff-Appellant,

versus

MICHAEL RHODES, NIKKI MCCOY; HERMAN WILLIAMS,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 5:04-CV-1743
                       --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Derek Bernstine, Louisiana prisoner # 416283, appeals the

dismissal of his civil rights suit filed pursuant to 42 U.S.C.

§ 1983 as frivolous and for failure to state a claim under

28 U.S.C. § 1915(e).   Bernstine argues that his due process

rights were violated when he was found guilty by a disciplinary

board but later exonerated.   These allegations, however, fail to

state a claim for a due process violation and are frivolous

because the punishment he received was not atypical and did not


     *
       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this opinion should not be published and is not precedent except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. 05-30358
                                 -2-

affect the length of his confinement.      See Sandin v. Conner, 515

U.S. 472, 484 (1995); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th

Cir. 1995).   Nor do his complaints about his placement in

administrative segregation and the loss of recreation state a

claim for cruel and unusual punishment in violation of the Eighth

Amendment.    See Herman v. Holiday, 238 F.3d 660, 664 (5th Cir.

2001).

     Bernstine’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

5TH CIR. R. 42.2.   The dismissal of this appeal as frivolous

counts as a strike under 28 U.S.C. § 1915(g), as does the

district court’s dismissal of his complaint.     See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).     Bernstine is

warned that, if he accumulates three strikes under § 1915(g), he

will not be permitted to 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; SANCTION WARNING ISSUED.
