Case: 10-10023     Document: 00511244000          Page: 1    Date Filed: 09/24/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 24, 2010
                                     No. 10-10023
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAMES NATHANIEL EVANS, also known as James N. Evans,

                                                   Plaintiff-Appellant

v.

RICK THALER; BRITTANY D. DREES; GLEN A. NAURET; THERESA L.
HENDRICKS,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 2:09-CV-267


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        James Nathaniel Evans appeals the district court’s dismissal with
prejudice of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state
a claim pursuant to 28 U.S.C. § 1915A and § 1915(e)(2). He argues that he is
entitled to damages because he was subjected to disciplinary proceedings that
were conducted in violation of his due process rights and that the finding of guilt
was not supported by any evidence.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-10023   Document: 00511244000 Page: 2        Date Filed: 09/24/2010
                                No. 10-10023

      A prisoner’s protected liberty interests are “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, 

, 484
(1995) (citations omitted).   The penalties imposed on Evans, the loss of
commissary privileges and cell restriction, are not atypical punishments and do
not extend the duration of his confinement. Thus, the disciplinary action did not
implicate due process concerns. Malchi v. Thaler, 

, 958 (5th Cir.
2000).
      Because there was no protected liberty interest involved in this case, the
amount of evidence presented was not an issue of arguable merit.              See
Superintendent, Mass. Correctional Inst. v. Hill, 

, 455 (1985). In
any event, the claim was frivolous because the charging officer’s report alone
was sufficient under the “some evidence” standard to support the disciplinary
decision. See Hudson v. Johnson, 

, 537 (5th Cir. 2001). Evans has
not alleged a claim having constitutional merit. Thus, the district court did not
err in dismissing the complaint as frivolous and in determining that Evans had
failed to state a claim upon which relief could be granted. See Geiger v. Jowers,

, 373 (5th Cir. 2005).
      Evans further contends that the district court abused its discretion in
failing to afford him the opportunity to amend his complaint to state a claim.
The district court did not abuse its discretion in treating Evans’s motion to
amend as a Federal Rule of Civil Procedure 59(e) motion and in denying the
motion because Evans has not shown that the proposed amendment would not
be frivolous and futile. Rosenzweig v. Azurix Corp., 

, 864 (5th Cir.
2003); Stripling v. Jordan Prod. Co., 

, 873 (5th Cir. 2000).




                                       2
  Case: 10-10023   Document: 00511244000 Page: 3      Date Filed: 09/24/2010
                               No. 10-10023

     Evans’s motion for appointment of counsel is DENIED. See Santana v.
Chandler, 

, 515-16 (5th Cir. 1992); Ulmer v. Chancellor, 

, 213 (5th Cir. 1982). The judgment of the district court is AFFIRMED.




                                      3