*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10063

Summary Calendar

_____________________

DAMON DOWNS,

Plaintiff-Appellant,

v.

LESLIE WAGES, Captain, TDCJ

Clements Unit,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(2:94 CV 131)

_________________________________________________________________

July 3, 1995

Before KING, JOLLY, and DEMOSS, Circuit Judges.

PER CURIAM:*

Damon Downs appeals from the district court's dismissal of his

in forma pauperis 42 U.S.C. § 1983 action on "frivolous" grounds.

Having reviewed the arguments, we affirm the judgment of the

district court.

I. FACTUAL AND PROCEDURAL BACKGROUND
 

1 As Downs stated, "I denied the escape charge and

admitted that, at most, I was guilty of conspiring with other

individuals to have a forged court order mailed to the TDCJ-ID .

. . . "

2

Downs sent the Texas Department of Criminal Justice -

Institutional Division (TDCJ) a counterfeit order purporting to

grant him a writ of habeas corpus and bearing the forged signature

of Judge Norman Black. The TDCJ discovered the forgery and

initiated a disciplinary action against Downs. Downs received

notice identifying his offense as an attempted escape, and the

notice alleged that Downs "did attempt to escape from the custody

of TDCJ-ID by forging an order from U.S. District Judge Norman

Black granting habeas corpus relief." Downs was given 24-hours

notice of the disciplinary hearing, at which he presented oral and

documentary evidence. He denied attempting to escape, but he

confessed to the forgery.1

The hearing officer determined that an escape charge was

inappropriate, but the officer found that Downs had pleaded guilty

to the state law felony of forgery. Because of this forgery

offense, the TDCJ assessed punishment involving the forfeiture of

more than five years of good time and the imposition of

administrative restrictions. Subsequently, Downs sued the hearing

officer and the director of the TDCJ. He claimed a deprivation of

due process because he did not have notice that he would be charged

with forgery. Such a lack of notice allegedly violated the

requirements of Wolff v. McDonnell, 418 U.S. 539 (1974), as well as
 

2 Downs also argued that TDCJ's failure to restore his

good-time credit denied him equal protection and served as an ex

post facto law. On appeal, however, he raises no issues

regarding the prison's failure to restore good-time credits;

thus, we treat these issues as abandoned. See, e.g., Hobbs v.

Blackburn, 752 F.2d 1079, 1083 (5th Cir. 1985) ("[T]hese matters

have not been cited as error on appeal and have not been briefed. 

In accordance with a long-standing rule in this circuit, these

issues are deemed abandoned.").

 

3 The statute provides that "[t]he court may request an

attorney to represent any such person unable to employ counsel

and may dismiss the case if the allegation of poverty is untrue,

or if satisfied that the action is frivolous or malicious." 28

U.S.C. § 1915(d).

3

the TDCJ's own rules.2 The magistrate judge denied relief, finding

that "[t]he notice Plaintiff received gave him both notice of

escape and forgery because it alleged that Plaintiff had attempted

to escape by forging Judge Black's signature to an order." Downs

appeals from this determination.

II. STANDARD OF REVIEW

Dismissal of an in forma pauperis complaint is appropriate if

the district court determines that it is frivolous, i.e., that "it

lacks an arguable basis in either law or fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). A complaint is legally

frivolous under 28 U.S.C. § 1915(d)3 if it is premised on an

"indisputably meritless legal theory." Id. at 327. We review a

district court's § 1915(d) dismissal using an abuse of discretion

standard. Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992).

III. ANALYSIS AND DISCUSSION

A. Wolff v. McDonnell

Downs asserts that he did not have notice that he would be

charged with forgery until his disciplinary hearing was in
4

progress. He argues that this violated his right to 24-hours

notice as prescribed in Wolff. As the magistrate judge's opinion

explained:

Although he [Downs] admits that he received twenty-four

hours notice of the hearing, he alleges that he should

have been given a second twenty-four hour notice because

the notice charged him with "escape" and did not

specifically charge him with "forgery." Since he

admitted to the charge of forgery and the escape charge

was dismissed, he claims that he was entitled to an

additional twenty-four hours notice after the escape

charge was dismissed and the charge changed to "forgery."

In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court

set forth three requirements for significant prison disciplinary

proceedings. Unless security risks would be created, the prisoner

must receive 1) written notice of the charges against him at least

24 hours before the hearing; 2) a written statement of the factfinder as to the evidence relied upon and the reasons for the

disciplinary action; and 3) the opportunity to call witnesses and

to present evidence in his defense. See id. at 563-66. Downs's

challenge focuses on the first procedural safeguard -- because his

listed offense was escape and he was eventually punished for

forgery, he argues that an additional 24-hours notice of the "new"

forgery charge was required.

We decline to credit such a technical manipulation of the due

process requirements expressed in Wolff. As the Supreme Court

explained, "[w]e hold that written notice of the charges must be

given to the disciplinary-action defendant in order to inform him

of the charges and to enable him to marshal the facts and prepare

a defense." Id. at 564. By describing the offense as attempted
 

4 As mentioned, the magistrate judge did state that

Downs's notice alerted him to both the escape and the forgery

offenses. In the alternative, the magistrate judge also noted

that Downs's forgery guilty plea "moot[ed] the issue associated

with respect to the propriety of the notice given to him," and

the court cited an Eighth Circuit opinion in support of this

proposition. In the Fifth Circuit, however, we have stated that

a prisoner's "admission that he pleaded guilty at [a]

disciplinary hearing cannot constitute a waiver of his due

process claim." Reeves v. Pettcox, 19 F.3d 1060, 1062 (5th Cir.

1994). Because this was only an alternative rationale, the

magistrate judge's error on this point does not alter our

conclusion that there was no abuse of discretion.

5

escape by the forgery of Judge Black's signature, we believe that

the notice received by Downs alerted him to the potential for

inquiry into the forgery and to possible discipline for the forgery

conduct. At the very least, the language of the notice provided

Downs with all of the information that he needed to prepare a

defense -- no "surprise charges" were invoked, and Downs admitted

his guilt of the forgery. Simply put, the notice accomplished the

dual purposes expressed by the Wolff Court, and we conclude that

the district court did not abuse its discretion in finding that the

notice was constitutionally adequate.

4

B. TDCJ Regulations

Downs also asserts that a TDCJ regulation requires a more

elaborate notice than that prescribed in Wolff. According to

Downs, the prison's failure to provide that notice deprived him of

a protected liberty interest and consequently violated his due

process rights.

Under certain circumstances, it is true that state regulations

may create liberty interests that are protected by the Due Process

Clause. See, e.g., Sandin v. Conner, No. 93-1911, 1995 WL 360217,
6

at *7 (U.S. June 19, 1995). Nevertheless, "where a liberty or

property interest is infringed, the process which is due under the

United States Constitution is that measured by the [D]ue [P]rocess

[C]lause, not that called for by state regulations." Giovanni v.

Lynn, 48 F.3d 908, 912 (5th Cir. 1995). As we stated in Giovanni:

Mere failure to accord the procedural protections called

for by state law or regulation does not of itself amount

to a denial of due process. Thus, in Jackson v. Cain,

864 F.2d 1235 (5th Cir. 1989), a prisoner-plaintiff

alleged "that a constitutional violation occurred because

he was not accorded the level of process provided for in

the DOC handbook." We stated: "This argument must fail.

A state's failure to follow its own procedural

regulations does not establish a violation of due

process, because `constitutional minima may nevertheless

have been met.'"

Id. at 912-13 (citations omitted). Thus, assuming arguendo that a

liberty interest was created by the TDCJ regulations, the only

necessary procedural safeguards are those required by Wolff.

Because we conclude that Downs's notice adequately alerted him to

potential inquiries about the forgery and to possible discipline

for the forgery, the notice fulfilled all of the Wolff requirements

and afforded Downs all of the process he was due under the United

States Constitution.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.