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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.

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