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

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.
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.
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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.

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