IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10523 Summary Calendar

DUC CANH PHAN,

Plaintiff-Appellant,

versus

JOSEPH K. PRICE, Warden; RICHARD CURRAN, Major,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:01-CV-427 -------------------- September 16, 2002

Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.

PER CURIAM:*

Duc Canh Phan, Texas prisoner # 668395, appeals from the

dismissal of his

complaint as frivolous and for

failure to state a claim. The issue on appeal is whether the

district court erred in determining that Phan had failed to state

a claim under the due process and equal protection clauses based

on a deprivation of his property pursuant to prison policy. We

review a dismissal for failure to state a claim pursuant to 42

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-10523 -2-

U.S.C. § 1915(e)(2)(B)(ii) de novo. Harris v. Hegmann,

(5th Cir. 1999).

Phan has not stated a claim under the Equal Protection

Clause because he has not alleged that he was treated differently

from similarly situated individuals nor has he alleged facts

which would support a finding that the alleged unequal treatment

stemmed from discriminatory intent. See Taylor v. Johnson,

(5th Cir. 2001).

He has also failed to state a due process claim. Phan

alleges that he has been deprived of his property, without due

process of law, by the unauthorized actions of prison officials;

therefore, a post-deprivation tort cause of action in state law

is sufficient to satisfy the requirements of due process.

Sheppard v. Louisiana Bd. of Parole,

(5th Cir.

1989). Texas provides adequate postdeprivation remedies.

Thompson v. Steele,

(5th Cir. 1983).

Phan's appeal is without arguable merit and is dismissed as

frivolous. See 5TH CIR. R. 42.2. Phan is informed that the

dismissal of this appeal as frivolous counts as a strike for

purposes of

(g), in addition to the strike for

the district court's dismissal. See Adepegba v. Hammons,

(5th Cir. 1996). We caution Phan that once he

accumulates three strikes, he may not proceed in forma pauperis

in any civil action or appeal filed while he is incarcerated or No. 02-10523 -3-

detained in any facility unless he is under imminent danger of

serious physical injury. See

(g).

DISMISSED; Motion for restraining order DENIED; THREE-STRIKES WARNING ISSUED.