* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-60006

Summary Calendar

 

VICTOR HURNS,

Plaintiff-Appellant,

versus

BARRY PARKER; LIEUTENANT SEGAR,

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:97-CV-61-S-D

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December 2, 1998

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Victor Hurns, Mississippi prisoner # 09848, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), against Unit

Warden Barry Parker and Lieutenant Segar, alleging that they

violated his constitutional rights to due process and equal

protection by arbitrarily labeling him a “gang-leader” and

removing him from the general population and placing him in
No. 98-60006

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administrative segregation pending investigation of an assault on

other inmates in his unit.

Hurns argues on appeal that the district court erred in

dismissing his complaint as frivolous based on Sandin v. Conner,

515 U.S. 472 (1995). He contends that he repeatedly alleged that

the defendants deprived him of his First, Fifth, and Eighth

Amendment rights and that the defendants actions were arbitrary. 

He argues that Sandin still allows prisoners to allege and bring

actions regarding arbitrary actions of prison officials and

claims under the First, Eighth, and Fourteenth Amendments. He

contends that the district court made no reference to these

claims. He also distinguishes Sandin based on the length of time

in administrative segregation, 30 days versus three years. He

argues that his confinement in administrative segregation imposed

atypical and significant hardships on him. He contends that the

district court did not develop the record with regard to

comparing the conditions of his confinement in administrative

segregation with the conditions of the general population.

“[A]dministrative segregation, without more, does not

constitute a deprivation of a constitutionally cognizable liberty

interest.” Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995); see

also Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996)(absent

extraordinary circumstances, continued confinement in

administrative segregation, being an incident to the ordinary
No. 98-60006

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life as a prisoner, will never be a ground for a constitutional

claim).

Phillips v. Puckett, No. 96-60372 (5th Cir. Dec. 6, 1996)

(unpublished), cited by Hurns, is distinguishable. Hurns has not

alleged that he has not received reviews of his custody

classification, and the record shows that he was reviewed on

January 10, 1997, just a few months before he filed this lawsuit.

The limitations on privileges in close custody as compared

with the general population do not impose atypical and

significant hardships as contemplated by Sandin.

Hurns’ claims under the First and Eighth Amendments and the

Equal Protection Clause, made in his original complaint and his

brief in support of his § 1983 claim, were not realleged at his

Spears hearing. His claim as he articulated it at his Spears

hearing was limited to Parker’s and Segar’s actions in placing

him in administrative segregation pending investigation of the

assault on the other inmates based on his alleged status as gang

leader. Hurns did not mention a violation of equal protection,

or of his right of association, or cruel and unusual punishment

at the Spears hearing. Therefore, these claims were not properly

before the district court. See Riley v. Collins, 828 F.2d 306,

307 (5th Cir. 1987) (allegations at Spears hearing supersede

allegations of complaint).

Hurns’ 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. We caution Hurns that any additional frivolous appeals
No. 98-60006

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filed by him or on his behalf will invite the imposition of

sanctions. To avoid sanctions, Hurns is cautioned further to

review any pending appeals to ensure that they do not raise

arguments that are frivolous.

APPEAL DISMISSED AS FRIVOLOUS.