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

                                                         Charles R. Fulbruge III
                                                                 Clerk
                              No. 03-20042
                          Conference Calendar



ELZIA ALLEN RICHARDSON,

                                      Plaintiff-Appellant,

versus

ONE BLACK FEMALE CORRECTIONAL OFFICER; MIKE LIGHTSEY,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-00-CV-4181
                       --------------------

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

PER CURIAM:*

     Elzia Allen Richardson, Texas prisoner # 525518, appeals

from the denial of his FED. R. CIV. P. 60(b) motion.   Richardson

contends that he is entitled to relief under Rule 60(b)(3)&(6),

because Lieutenant Mike Lightsey allegedly gave perjured summary

judgment affidavit testimony.

     Even if Richardson’s assertions of perjury were accepted as

true, we would set aside the judgment only if we found that

Lightsey’s actions precluded Richardson from “fully and fairly

     *
        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that this opinion should not be published and is not precedent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. 03-20042
                                 -2-

present[ing] [his] case.”    See Diaz v. Methodist Hospital,

46 F.3d 492, 497 (5th Cir. 1995) (internal quotations and

citation omitted).   Richardson made the same allegations during

the summary judgment proceedings, and, therefore, Richardson was

not prevented from “fully and fairly present[ing] [his] case.”

See id.   Moreover, the issue whether Lightsey perjured himself

was immaterial to the resolution of his appeal from the district

court’s denial of 42 U.S.C. § 1983 relief.     See Richardson v. One

Black Female Correctional Officer, No. 01-21268 (5th Cir. Mar.

20, 2003) (unpublished).    Richardson has therefore not shown an

abuse of discretion on the part of the district court.       See Diaz,

46 F.3d at 496.

     Richardson’s appeal is without arguable merit and is

dismissed.   See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983).    Richardson is informed that 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).

     APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
