1

United States Court of Appeals,

Fifth Circuit.

No. 95-40413.

Rolando PICHARDO, Plaintiff-Appellant,

v.

H.E. KINKER, M.W. Moore, W. Scott, J.A. Collins, S.O. Woods and

S. Buentello, Defendants-Appellees.

Jan. 31, 1996.

Appeal from the United States District Court for the Eastern

District of Texas.

Before JOLLY, DAVIS and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Rolando Pichardo appeals from the judgment of the United

States District Court for the Eastern District of Texas dismissing

as frivolous under 28 U.S.C. § 1915 his claim that his confinement

in administrative segregation violates his due process rights. We

hold that absent extraordinary circumstances, administrative

segregation as such, being an incident to the ordinary life as a

prisoner, will never be a ground for a constitutional claim, and

therefore affirm.

I

Pichardo, an inmate at Texas Department of Criminal Justice

("TDCJ"), filed suit pursuant to 42 U.S.C. § 1983 against various

TDCJ officials and employees at the Coffield and Hobby Units.

Pichardo challenged the determination, made while he was at the

Hobby Unit, that he was affiliated with the Texas Syndicate, a

prison gang, a determination that resulted in his classification as
 

1Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). 

2

a gang member and his placement in administrative segregation at

the Coffield Unit. The magistrate judge assigned to the matter

severed the claims and allegations concerning the initial

determination of Pichardo's gang affiliation and transferred those

claims to the United States District Court for the Western District

of Texas.

The magistrate judge conducted a Spears1 hearing to flesh out

the factual allegations concerning Pichardo's claim of a due

process violation arising from his continued confinement in

administrative segregation. At the hearing, Pichardo testified

that he had consistently denied any gang affiliation and that he

had received periodic review by the Coffield Unit's classification

committee concerning his gang classification. Prison Warden Kinker

explained the procedures utilized in classifying an inmate as a

gang member, with placement in administrative segregation, and

noted that review occurs every ninety days to determine whether the

inmate continues as an active member of the gang.

The magistrate judge recommended dismissal of Pichardo's

complaint as frivolous, concluding that Pichardo had not shown an

abuse of the prison officials' discretion in continuing to classify

Pichardo as a gang member; thus, no due process violation had

occurred. The district court conducted a de novo review of the

record, adopted the magistrate judge's report, and dismissed

Pichardo's complaint as frivolous under 28 U.S.C. § 1915. This

timely appeal followed.
 

2Unlike the plaintiff in the recent and nearly identical

case of Luken v. Scott, 71 F.3d 192 (5th Cir.1995) (per curiam),

Pichardo does not contend that he lost the opportunity to earn

good-time credits, and that that loss constitutes a

constitutionally cognizable liberty interest. He claims instead

that the mere placement in administrative segregation deprives

him of a liberty interest. 

3

II

 Pichardo argues that the TDCJ policies covering an inmate's

placement and continued confinement in administrative segregation

create a protectable liberty interest.

2 Because this contention

lacks an arguable basis in law or fact, we hold that his complaint

was properly dismissed as frivolous. Denton v. Hernandez, 504 U.S.

25, 31, 112 S.Ct. 1728, 1732-33, 118 L.Ed.2d 340 (1992).

The Supreme Court recently held that a prisoner's liberty

interest is "generally limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected manner as to

give rise to protection by the Due Process Clause of its own force,

... nonetheless imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life."

Sandin v. Conner, 515 U.S. ----, ----, 115 S.Ct. 2293, 2300, 132

L.Ed.2d 418, 430 (1995) (citations omitted). In Sandin, the Court

held that the petitioner's "discipline in segregated confinement

did not present the type of atypical, significant deprivation in

which a state might conceivably create a liberty interest." Id.

In the wake of Sandin, as we recently have held, "administrative

segregation, without more, simply does not constitute a deprivation

of a constitutionally cognizable liberty interest." Luken v.

Scott, 71 F.3d at 193.
4

III

Because Pichardo has not alleged a deprivation of a

constitutionally cognizable liberty interest, his 42 U.S.C. § 1983

action has no arguable basis in law. His complaint was therefore

properly dismissed as frivolous.

AFFIRMED.