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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-41238

Summary Calendar

JEROME BLACK,

Plaintiff-Appellant,

VERSUS

J.L. WARREN, Disciplinary Captain; K. HARBIN, CO III,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

February 18, 1998

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:

Jerome Black, Texas prisoner #634349, appeals the district

court’s dismissal of his civil rights claims as frivolous and for

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) & (ii).

Black argues that the district court erred in dismissing his claims

of due process violations during a disciplinary hearing pursuant to

Sandin v. Conner, 515 U.S. 472 (1995). He contends that Texas

created a liberty interest by enacting certain Texas Department of

Criminal Justice-Institutional Division (TDCJ-ID) procedural rules
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governing prison disciplinary hearings. He also argues that no

evidence supported the disciplinary action taken against him.

The Prison Litigation Reform Act (PLRA) amended § 1915 to

require the district court to dismiss in forma pauperis (IFP)

prisoner civil rights suits if the court determines that the action

is frivolous or malicious or does not state a claim upon which

relief may be granted. § 1915(e)(2)(B)(i) & (ii); see also, §

1915A(b)(1). The language of § 1915(e)(2)(B)(ii) tracks the

language of Federal Rule of Civil Procedure 12(b)(6). We will

therefore employ the same de novo standard to review the §

1915(e)(B)(ii) dismissal as we use to review dismissal pursuant to

12(b)(6). Mitchell v. Farcass, 112 F.3d 1485, 1489-90 (11th Cir.

1997); accord McGore v. Wrigglesworth , 114 F.3d 601, 604 (6th Cir.

1997); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996). As to

the dismissal pursuant to § 1915(e)(2)(B)(i), we review a

determination by a district court that a case is frivolous for

abuse of discretion. See Siglar v. Hightower, 112 F.3d 191, 193

(5th Cir. 1997). A complaint is frivolous if it lacks an arguable

basis in law or fact. Id. 

We have reviewed the record and find neither error nor abuse

of discretion in the reasoning of the district court as to Black’s

claim of a due process violation because he did not receive

advanced written notice of the charge. Black v. Warren, No. 9:96-

CV-359 (E.D.Tex. Oct. 28, 1996). Black has not demonstrated plain

error with respect to his contention, raised for the first time in

this appeal, that he was deprived of due process because he was not
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allowed to present documentary evidence or to call witnesses at the

hearing. See Robertson v. City of Plano, Tex., 70 F.3d 21, 23 (5th

Cir. 1995); Sandin, 515 U.S. at 484-85.

Assuming TDCJ-ID procedural rules regarding notice and the

right to call witnesses and present documentary evidence were

violated, Black has not shown that such errors rise to the level of

a constitutional due process claim. See Jackson v. Cain, 864 F.2d

1235, 1251-52 (5th Cir. 1989). Even if a constitutional liberty

interest is implicated by Black’s challenge to the disciplinary

decision on the ground that no evidence supports the charge, the

record reveals that “some evidence” supports the charge. Banuelos

v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).

AFFIRMED.