                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 21, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-41297
                          Summary Calendar


MICHAEL DEAN PERRY

                     Plaintiff - Appellant

     v.

MAXI CIRLIANO, Sheriff, Gregg County, LONGVIEW POLICE
DEPARTMENT, UNIDENTIFIED DENMON, Captain, Gregg County Jail,
GENE ANDERSON, Officer, Gregg County Jail, SHANNON STANDARD,
Officer, Gregg County Jail

                     Defendants - Appellees

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 6:01-CV-482
                        --------------------

Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.

PER CURIAM:*

     Michael Dean Perry, Texas prisoner #1084501, appeals from

the denial of his postjudgment motion for a new trial, which was

properly construed as a motion for relief from judgment under

FED. R. CIV. P. 60(b).   See Harcon Barge Co. v. D & G Boat

Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986)(en banc).        In

the instant appeal, Perry has filed motions seeking appointment


     *
        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that this opinion should not be published and is not precedent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. 02-41297
                                 -2-

of counsel and production of a transcript at government expense.

Those motions are DENIED.

     In his FED. R. CIV. P. 60(b) motion, Perry challenged the

dismissal with prejudice of his 42 U.S.C. § 1983 lawsuit on the

grounds that:   (1) he had not been admonished of his right to

appeal; (2) he was denied full disclosure of the evidence;

(3) his requests for appointment of counsel had been denied;

(4) he was denied access to adequate legal materials; and (5) the

jail personnel interfered with his right to access the courts.

Perry’s lawsuit was dismissed with prejudice because he failed to

obey the magistrate judge’s order and answer questions posed to

him on cross-examination during the bench trial.    As none of

Perry’s arguments in his FED. R. CIV. P. 60(b) motion addressed

that sole basis for dismissal, the denial of that motion was

proper.   See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402

(5th Cir. 1981).

     As Perry’s appeal lacks arguable merit, it is DISMISSED AS

FRIVOLOUS.    See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.   The dismissal of this appeal as

frivolous counts as a “strike” for purposes of 28 U.S.C.

§ 1915(g).    See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th

Cir. 1996).   If he accumulates three “strikes” under 28 U.S.C.

§ 1915(g), Perry will not be able to proceed in forma pauperis in

any civil action or appeal filed while he is incarcerated or
                           No. 02-41297
                                -3-

detained in any facility unless he is under imminent danger of

serious physical injury.   Id.

     APPEAL DISMISSED; MOTIONS DENIED; THREE-STRIKES WARNING

ISSUED.
