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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 03-40381
                          Conference Calendar


BYRONE ARNOLD,

                                      Plaintiff-Appellant,
versus

WAL-MART; DAVID WILSON,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 6:03-CV-35
                       --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Byrone Arnold, Texas prisoner # 881640, appeals from the

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

Arnold’s motion for appointment of counsel is DENIED.

     Relevant to our disposition of the case, Arnold argues that

the district court erred by dismissing his complaint without

serving the defendants; that the district court erred by raising

res judicata sua sponte; erred by dismissing the action pursuant

to the in forma pauperis (IFP) prisoner provisions; and erred by

equating the standards of 28 U.S.C. § 1915(e) with the standards

     *
        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that this opinion should not be published and is not precedent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. 03-40381
                                -2-

of FED. R. CIV. P. 12(b)(6).   Arnold also argues that the district

court violated state procedural and constitutional law.    Federal

procedural rules applied to the case, see FED. R. CIV. P. 1, and

the state-law contentions are unavailing.

     Because Arnold did not name a state actor as defendant,

the district court erred by dismissing the action pursuant to

28 U.S.C. § 1915A.   See 28 U.S.C. § 1915A(a),(b); Martin v.

Scott, 156 F.3d 578, 580 (5th Cir. 1998).    Because Arnold paid

the district-court filing fee, the district court erred by

dismissing the action before the defendants were served.

See Williams v. Rhoden, 629 F.2d 1099, 1101 (5th Cir. 1980).

     The district court’s errors were harmless.    It was not error

to raise res judicata sua sponte in Arnold’s case or to dismiss

the case pursuant to the doctrine of res judicata.    See Mowbray

v. Cameron County, Texas, 274 F.3d 269, 281 (5th Cir. 2001),

cert. denied, 535 U.S. 1055 (2002); Russell v. SunAmerica

Securities, Inc., 962 F.2d 1169, 1172 (5th Cir. 1992).

     The dismissal of Arnold’s previous action as frivolous and

the dismissal of the instant case as frivolous both count as

“strikes” for purposes of 28 U.S.C. § 1915(g).    Arnold is warned

that once he accumulates three “strikes,” he will not be allowed

to proceed IFP in any civil action or appeal “unless [he] is

under imminent danger of serious physical injury.”    28 U.S.C.

§ 1915(g).

     AFFIRMED.
