                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 22, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-20127
                         Summary Calendar


JAMES LEVI SMITH,

                                    Plaintiff-Appellant,

versus

DAVID A. TURRUBIATE; GARY A. WAKEFIELD;
JOHN J. JETER; FRANCIS CHERIAN;
PAUL B. WILDER; VELMA MONCADE,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-01-CV-805
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     James Levi Smith, Texas prisoner # 553256, seeks to appeal

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

rights suit.   This court must raise, sua sponte, the issue of its

own jurisdiction, if necessary.   Mosley v. Cozby, 813 F.2d 659,

660 (5th Cir. 1987).   A timely notice of appeal is a mandatory

precondition to the exercise of appellate jurisdiction.       Nelson

v. Foti, 707 F.2d 170, 171 (5th Cir. 1983).   Federal Rule of


     *
        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that this opinion should not be published and is not precedent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. 03-20127
                                 -2-

Appellate Procedure 4(a)(1) requires that the notice of appeal in

a civil action be filed within 30 days of entry of the judgment

or order from which appeal is taken.

     Smith did not file his notice of appeal within 30 days of

the entry of judgment.    Instead, he filed a FED. R. CIV. P. 60(b)

motion, which did not suspend the time for filing a notice of

appeal.    See In re Ta Chi Navigation (Panama) Corp. S.A., 728

F.2d 699, 703 (5th Cir. 1984).    His notice of appeal was timely

as to the denial of that motion only, meaning that this court has

jurisdiction to review only the district court’s order denying

the Rule 60(b) motion.    See id.; FED. R. APP. P. 4(a)(1).

However, Smith briefs no argument challenging the denial of his

Rule 60(b) motion.    He has thus waived the sole issue over which

this court has jurisdiction.     See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993).

     Smith’s appeal is wholly without arguable merit and is

DISMISSED as frivolous.    See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5TH CIR. R. 42.2.    The dismissal of this appeal

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

§ 1915(g).    See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).    Smith is CAUTIONED that if he accumulates three strikes,

he may not proceed in forma pauperis in any civil action or

appeal while he is incarcerated or detained in any facility

unless he is under imminent danger of serious physical injury.
                           No. 03-20127
                                -3-

See 28 U.S.C. § 1915(g).   His motion for the appointment of

counsel is DENIED.

     APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED; MOTION

DENIED.
