UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-40026 Summary Calendar _____________________

GARY FRANKLIN LETT,

Plaintiff-Appellant,

versus

THERESA ANTWINE, Correctional Officer; SANDRA HAYES, Correctional Officer; LOIS HOLLOWAY, Correctional Officer III; CAPRISHA JACK, Correctional Officer III; F. VALCIN, Correctional Officer; D’WANDA MARKS, Counsel Substitute; MICHAEL DABNEY, Unit Disciplinary Hearing Officer; UP KIRKENDALL, Counsel Substitute; UP BROWN, Counsel Substitute; FELICIA DAVIS, Correctional Officer III,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:96-CV-434) _________________________________________________________________

September 16, 1999

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Gary Franklin Lett, Texas prisoner # 663855, pro se and in

forma pauperis (IFP), appeals the dismissal of his

action as frivolous and for failing to state a claim upon which

relief may be granted. Lett raises four issues.

First, Lett contends that the hearing conducted pursuant to

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Spears v. McCotter,

(5th Cir. 1985), overruled on

other grounds, Neitzke v. Williams,

(1989), was

fundamentally deficient because he was not given sufficient

opportunity to present his version of the facts or to otherwise

present evidence. He has failed to identify a deficiency in the

Spears proceedings. A Spears hearing is not a trial on the merits,

but is similar to a motion for a more definite statement. See

Spears,

; Wesson v. Oglesby,

(5th Cir. 1990).

Second, Lett maintains that the magistrate judge improperly

dismissed his action for failure to satisfy the requirements of

Heck v. Humphrey,

(1994). To recover damages in a §

1983 action for an allegedly unconstitutional conviction or

imprisonment, the plaintiff must prove that the conviction or

sentence has been invalidated. See id. at 486-87. For the first

time on appeal, and without supporting evidence, Lett contends that

a state court issued a writ of habeas corpus invalidating his

prison sentence. This untimely and undocumented contention does

not justify finding plain error. See United States v. Olano,

(1993); Robertson v. Plano City of Texas,

(5th Cir. 1995).

Lett’s third contention is that the sanctions levied against

him through the prison disciplinary proceedings implicate a liberty

interest under the Due Process Clause. He complains that he is not

allowed to practice his religion, attend church, attend school,

seek rehabilitation, participate in recreation, or eat meals.

- 2 - Other than the inability to attend school, none of these sanctions

were raised in Lett’s § 1983 complaint, and thus are reviewed only

for plain error. See Olano,

. Lett’s removal from

school does not amount to an atypical or significant hardship that

would implicate a liberty interest under the Due Process Clause.

See Sandin v. Conner,

(1995) (explaining that

liberty interests created by the states under the Due Process

Clause are “generally limited to freedom from restraint”). Nor do

the remaining claims constitute plain error. See Olano,

; Robertson,

.

Finally, Lett claims that the prison disciplinary proceedings

created a cause of action for malicious prosecution. With respect

to each of the disciplinary proceedings identified in his

complaint, Lett has failed to demonstrate either that the

disciplinary proceedings terminated in his favor or that he was

damaged by the proceedings. See Pete v. Metcalfe,

(5th Cir. 1993). Thus, he has failed to state a claim of malicious

prosecution upon which relief may be granted.

Lett has failed to raise a meritorious claim on appeal.

Accordingly, the dismissal of Lett’s action as frivolous, pursuant

to

(e)(2), is AFFIRMED. The dismissal counts as a

“strike” for purposes of

(g). See Adepegba v.

Hammons,

(5th Cir. 1996) (affirmance of district

court’s dismissal as frivolous counts as a single strike). It is

Lett’s first “strike”. Lett is cautioned that if he accumulates

three strikes, he may not proceed IFP in any civil action or appeal

- 3 - filed while he is incarcerated or detained in any facility unless

he is in imminent danger of serious physical injury. See

(g).

AFFIRMED

- 4 -