                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 21, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-10707
                        Conference Calendar



WILLIE LEE MAXWELL,

                                     Plaintiff-Appellant,

versus

SAM SALEH, County Court Judge,

                                     Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                       USDC No. 5:05-CV-71
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Willie Lee Maxwell, Texas inmate # 1163609, appeals the

dismissal as frivolous and for failure to state a claim of his in

forma pauperis (IFP) 42 U.S.C. § 1983 complaint.    Maxwell sued

Sam Saleh to recover the retainer paid to him to act as defense

counsel for Maxwell and his wife; after the payment, Saleh

allegedly informed them that he could no longer represent them

because he had been elected judge.   Maxwell argues that the

district court abused its discretion by not notifying him of his


     *
       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this opinion should not be published and is not precedent except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. 05-10707
                                 -2-

complaint’s deficiencies and providing an opportunity to amend.

He also argues that his suit was not untimely.    He further

asserts that the actions of Saleh, and others, were under color

of state law.

     Attorneys do not act under color of state law when they

perform a lawyer’s traditional function as defense counsel in a

criminal proceeding.    See Polk County v. Dodson, 454 U.S. 312,

325 (1981).    Thus, we need not address Maxwell’s contentions that

his § 1983 complaint was timely because, even if the complaint is

timely, Saleh is not a state actor for § 1983 purposes.     Maxwell

has shown no error in the district court’s dismissal of his

complaint without affording him an opportunity to amend.       See

Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999).

     Maxwell’s appeal lacks arguable merit and is dismissed as

frivolous.    See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983).    The dismissal of this appeal and the

dismissal by the district court count as two strikes for purposes

of 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103 F.3d 383,

388 (5th Cir. 1996).    Maxwell is cautioned that if he accumulates

three strikes, he will not be able to proceed IFP in any civil

action or appeal filed while he is incarcerated or detained in

any facility unless he is under imminent danger of serious

physical injury.    See § 1915(g).   Maxwell’s motion for production

of documents is denied.

     APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION DENIED.
