                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 16, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                              No. 04-20706
                          Conference Calendar



DUANE B. HARRIS,

                                      Plaintiff-Appellant,

versus

RICHARD C. THALER, Senior Warden; STEVEN R. RICH, Assistant
Warden; ABBAS KHOSHDEL; LOWRY POWERS, Physician’s Assistant;
MS. D.A. RUBY, Nurse Practitioner,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:03-CV-2039
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Duane B. Harris, Texas prisoner no. 934689, appeals the

dismissal of his 42 U.S.C. § 1983 action as frivolous under 28

U.S.C. § 1915(e)(2)(B).    Harris contends that the defendants

failed to provide him with adequate medical care.

     Harris’s complaint, his more definite statement in the

district court, and the transcript of his hearing held pursuant

to Spears v. McCotter, 766 F.2d 179, 180-81 (5th Cir. 1985),


     *
       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this opinion should not be published and is not precedent except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. 04-20706
                               -2-

reveal that he has failed to allege facts to establish deliberate

indifference to a serious medical need as is required in order to

proceed under the Eighth Amendment and 42 U.S.C. § 1983.     See

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).     The

judgment of the district court is AFFIRMED.

     Harris is warned that the district court’s dismissal of his

action as frivolous counts as a strike under 28 U.S.C. § 1915(g).

If Harris accumulates three strikes, 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 Adepegba

v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); 28 U.S.C.

§ 1915(g).

     AFFIRMED; SANCTION WARNING ISSUED.
