* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not

be published and is not prec e dent except under the limit ed circumstances set forth in 5 TH C IR

. R.

47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 30, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 04-41195

(Summary Calendar)

_________________

FREDDIE LEE WALKER,

Plaintiff-Appellant,

versus

SAMMY BUENTELLO; KENNETH W LEE; J P GUYTON; LUCIO CASTRO,

Defendants - Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

USDC No. 6:04-CV-247-WMS-JKG

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM: *

Freddie Lee Walker (“Walker”), a Texas state prisoner, appeals the 28 U.S.C. § 1915A(b)(1)

dismissal of his 42 U.S.C. § 1983 suit, which alleged constitutional violations arising from his-2-

classification as a confirmed m ember o f a security threat group (“STG”). Following that

classification, Walker was transferred to Minimum-In-Housing, received a different work assignment,

and lost his “trusty” status. The district court dismissed Walker’s suit as frivolous.

Walker first argues that the district court erred in dismissing as frivolous his due process

claims that he was deprived of notice and an opportuni ty to review the evidence supporting a finding

that he was an STG member. This court reviews dismissals under 28 U.S.C. § 1915A d e novo

.

Velasquez v. Woods

, 329 F.3d 420, 421 (5th Cir. 2003). Walker has not identified a constitutionally

cog nizable liberty interest in connection with his classification, either as an STG member or with

respect to this “trusty” status, or in the resulting housing and work changes. S ee Luken v. Scott

, 71

F.3d 192, 193 (5th Cir. 1995) (holding that prisoner’s placement in administrative segregation, due

to allegedly false informat io n in his file indicating that he was a member of a prison gang, did not

constitute a deprivation of a constitutionally cognizable liberty interest); Jackson v. Cain

, 864 F.2d

1235, 1247 (5th Cir. 1989) (“[A] prisoner has no constitutional right to a specific work

assignment.”). The district court did not err in dismissing Walker’s claims as frivolous. Neitzke v.

Williams

, 490 U.S. 319, 327-328 (1989) (“Examples of [frivolous claims] are.

. . claims of

infringement of a legal interest which clearly does not exist, like [respondent’s] claim that his transfer

within the reformatory violated his rights under the Due Process clause.”). Walker has abandoned

any retaliation claim by failing to adequately brief this argument on appeal. S ee Brinkmann v. Dallas

County Deputy Sheriff Abner

, 813 F.2d 744, 748 (5th Cir. 1987) (“[Appellant’s] abrupt assertion [in

his brief] does not remotely suggest grounds for reversal.”).

Walker next argues that the district court erred in dismissing his claims with prejudice and

without considering his objections to the magistrate’s report or conducting an evidentiary hearing.-3-

The district court’s order of dismissal reflects that the court did consider Walker’s objections to the

magistrate judge’s report in dismissing Walker’s complaint. Walker has shown no error in the district

court’s dismissal of his complaint with prejudice. S ee Marts v. Hines

, 117 F.3d 1504, 1506 (5th Cir.

1997) (en banc) (construing 28 U.S.C. § 1915 and stating that, in an in forma pauperis proceeding,

dismissals are treated as being with prejudice unless the district court specifies otherwise). Walker

has also shown no error in the district court’s dismissal of his complaint without first conducting a

Spears v. McCotter

, 766 F.2d 179 (5th Cir. 1985), hea ring. If a deficient complaint i n forma

pauperis might be remedied through greater factu al development, a district court should hold an

evidentiary hearing to allow the defendant to state his best case. T aylor v. Johnson

, 257 F.3d 470,

474 (5th Cir. 2001). Walker’s allegations were deficient, however, not because he had not had an

adequate opportuni ty to develop the facts of his case, but because the facts he alleged did not rise to

the level of a constitutional violation.

The district court’s dismissal of Walker’s complaint counts as a strike for purposes o f 28

U.S.C. § 1915(g). S ee Adepegba v. Hammons

, 103 F.3d 383, 387-88 (5th Cir. 1996) (“[A]ffirmance

of a district court dismissal as frivolous counts as a single ‘strike.’”). Walker is cautioned that if he

accumulates three strikes, he will no longer be allowed to proceed i n forma pauperis in a ny civil

action or appeal filed while he is detained or incarcerated in any facilit y unless he is under imminent

danger of serious physical injury. See 28 U.S.C. § 1915(g).

AFFIRMED; SANCTION WARNING ISSUED.