IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41120 Summary Calendar

DANIEL GLEN OSTRANDER,

Plaintiff-Appellant, versus

EDDIE WILLIAMS; TROY SIMPSON; RICKEY TARVER; JIMMY JOHNSON; RICHARD ALFORD; WILLIAM PITTMAN; JOHN DEGGS; ADAM SHEPPARD; TOMMY HYDER; NORMA SHERMAN; BOBBY SUMMERS; TIMOTHY WEST, Senior Warden, Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas - - - - - - - - - - November 16, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Daniel Glen Ostrander, an inmate, brought this action under

alleging retaliation by prison officials and

violations of due process at a disciplinary proceeding.

Ostrander appeals the district court’s grant of summary judgment

for defendants, which was adopted from the magistrate’s report

and recommendation. Ostrander also claims that the magistrate

should have granted him access to the audiotapes of his

disciplinary proceedings before the court granted summary

judgment.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Parties must object to a magistrate’s report and

recommendation within ten days of being served. See

(b)(1). If an appellant has received notice of the

requirement but fails to object, this court reviews for plain

error the district court’s grant of summary judgment based upon

that report and recommendation. See Douglass v. United Serv.

Auto. Ass’n,

(5th Cir. 1996) (en banc).

Ostrander was notified of the ten-day rule but filed no

objections, making the plain error standard applicable.

After close examination of the record and consideration of

the parties’ arguments, we find no plain error in the district

court’s rulings. Ostrander cannot bring his due process suit as

a § 1983 action, and his allegations of retaliation were wholly

conclusory. Because Ostrander’s due process claims were not

actionable under § 1983, it is irrelevant whether Ostrander had

access to the audiotape of his disciplinary proceeding before the

grant of summary judgment.

AFFIRMED.