                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS      August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 04-40101
                        Conference Calendar



ANTHONY L. SUMMERS,

                                    Plaintiff-Appellant,

versus

UP GIBSON, Officer; D. DOUGHTY, Warden; UP MATTHEWS, Sergeant,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 1:03-CV-1406
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Anthony L. Summers, Texas prisoner # 1130913, appeals the

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

action for failure to state a claim for failing to exhaust

administrative remedies pursuant to 42 U.S.C. § 1997e.       Summers

argues that he filed his complaint in the district court without

having exhausted the grievance procedures because of fear of what

would happen to him, but he does not allege that he has been

retaliated against for filing grievances or lawsuits.      Summers

     *
        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that this opinion should not be published and is not precedent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. 04-40101
                                 -2-

stated in his complaint that he did not exhaust the grievance

procedures at his institution.    In his reply to the magistrate

judge’s report, he gave no explanation for his failure to exhaust

and made no argument against the magistrate judge’s

recommendation of dismissal on that basis.     The district court

did not err in dismissing Summers’s action for failure to exhaust

administrative remedies.    See Days v. Johnson, 322 F.3d 863, 866

(5th Cir. 2003).

     Summers’s appeal is without arguable merit and is 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.

     Summers is hereby informed that the dismissal of this appeal

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

§ 1915(g), in addition to the strike for the district court’s

dismissal.   See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996) (“[D]ismissals as frivolous in the district courts or the

court of appeals count [as strikes] for the purposes of

[§ 1915(g)].”).    We caution Summers 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 AS FRIVOLOUS; SANCTIONS WARNING ISSUED.
