                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 7, 2006

                                                         Charles R. Fulbruge III
                           No. 05-40781                          Clerk
                         Summary Calendar


                       DOUGLAS ALAN BURDEN,

                                              Plaintiff-Appellant,

                              versus

       UNIDENTIFIED PARTY, Head Supervisor/Director of ATAR
     Spindletop Life Resources; DENA JOHNSON, Johnston’s Head
      Counselor; MIKE FAIRLEY, Head Coordinator of Substance
   Abuse; JAMES TABORWSKI, Probation Officer; ROSALYN COBBALD,
             Director, ATAR Spindletop Life Resources,

                                            Defendants-Appellees.
                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:03-CV-582
                       --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Douglas Alan Burden, Texas prisoner # 1160823, appeals from

the dismissal of his 42 U.S.C. § 1983 complaint pursuant to

28 U.S.C. § 1915(e)(2)(b)(i), (ii) as frivolous and for failure to

state a claim and moves for appointment of counsel.    He argues that

the district court erred in holding that he failed to state a claim

under the Equal Protection Clause.     Burden’s motion to file a

supplemental reply brief is granted.

     Affording the dismissal the requisite de novo review, Geiger

     *
      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this opinion should not be published and is not precedent except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.
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005), we hold that Burden

has failed to allege facts that would tend to show that he was

intentionally treated differently from similarly situated clients

of   the   treatment    program   without   a   rational   basis   for   the

distinction.    See Village of Willowbrook v. Olech, 528 U.S. 562,

564 (2000).     He has therefore indeed failed to state an equal

protection claim.

      Burden’s appeal presents no “exceptional circumstances,” and

his motion for appointment of counsel is therefore denied.           Ulmer

v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).             Because his

appeal is without arguable merit, it is dismissed.          See 5TH CIR. R.

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

      Burden is cautioned 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, 388 (5th Cir. 1996).              He is

further cautioned that if he accumulates three strikes under

§ 1915(g), he will not be able to 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; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
MOTION TO FILE SUPPLEMENTAL REPLY BRIEF GRANTED; SANCTION WARNING
ISSUED.




                                     2
