                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT




                             No. 00-40404
                           Summary Calendar



FREDDY HURLEY,
                                      Plaintiff-Appellant,

versus

ALLEN POLUNSKY, Texas Department of Criminal Justice;
WAYNE SCOTT, Director; Texas Department of Criminal Justice -
Institutional Division; SALVADOR “SAMMY” BUENTELLO, Texas
Department of Criminal Justice - Institutional Division;
GARY L. JOHNSON, DIRECTOR, Texas Department of Criminal
Justice - Institutional Division; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, STAFF POSITIONS & EMPLOYMENTS, Names
Unavailable,

                                      Defendants-Appellees.


                      ---------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:99-CV-604
                      ---------------------
                        September 28, 2000

Before DAVIS, JONES and DEMOSS, Circuit Judges.

PER CURIAM:*

     Texas state prisoner Freddy Hurley, #453088, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint,

with prejudice, under 28 U.S.C. § 1915(A) as frivolous and for

failure to state a claim upon which relief may be granted.



     *
        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that this opinion should not be published and is not precedent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. 00-40404
                               - 2 -

     Hurley’s pending “motion for emergency order and preliminary

injunction” is DENIED.

     Hurley asserts that 1) he was entitled to a default judgment

because the defendants and their counsel failed to attend the

evidentiary hearing held pursuant to Spears v. Mc Cotter, 766

F.2d 179 (5th Cir. 1985); 2) the magistrate judge made improper

credibility assessments at the Spears hearing; 3) the district

court failed to conduct the required de novo review of the

magistrate judge’s first report and recommendation; 4) the

district court erred in dismissing his claims against supervisory

defendants Allen Polunsky, Wayne Scott, and Gary Johnson; 5) he

should have been granted an opportunity to ascertain the

identities of other unnamed defendants through discovery; and

6) prison officials allowed him to be assaulted by another

inmate.

     We have reviewed the record and Hurley’s brief and conclude

that the district court properly dismissed his complaint as

frivolous and for failing to state a claim upon which relief may

be granted.   The defendants did not fail to comply with the

magistrate judge’s “order setting evidentiary hearing.”    See

Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996).   The magistrate

judge did not use Hurley’s prison records to contradict his

Spears testimony.   See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th

Cir. 1991).   The district court explicitly stated that it had

conducted “a careful de novo review” of each of the magistrate

judge’s reports and Hurley’s objections thereto.   See Koetting v.

Thompson, 995 F.2d 37, 40 (5th Cir. 1993).   Hurley’s claims
                            No. 00-40404
                                - 3 -

against supervisory defendants Polunsky, Scott, and Johnson were

properly dismissed.   Alton v. Texas A & M University, 168 F.3d

196, 200 (5th Cir. 1998).   Furthermore, Hurley has not shown that

he should have been granted an opportunity to ascertain the

identities of other unnamed defendants.    See Jones v. Greninger,

188 F.3d at 327.   Finally, Hurley’s contention that prison

officials allowed him to be assaulted by another inmate was not

presented to the district court and is not considered.      See

Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir.

1999), cert. denied, 120 S. Ct. 2004 (2000).

     Hurley’s appeal is without merit and therefore frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED.      See 5TH CIR. R.

42.2.   The district court’s dismissal of the present case and our

dismissal of this appeal count as two strikes against Hurley for

purposes of 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103

F.3d 383, 385-88 (5th Cir. 1996).   We caution Hurley 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

detained in any facility unless he is under imminent danger of

serious physical injury.    See 28 U.S.C. § 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION DENIED.
