          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                               No. 06-41294
                             Summary Calendar                    September 7, 2007

                                                             Charles R. Fulbruge III
                                                                     Clerk
ENRIQUE AKIL DIAZ

                                           Plaintiff-Appellant

v.

TONY GREEN; STEVEN SWIFT; EMILY WHITE

                                           Defendants-Appellees


                Appeal from the United States District Court
                     for the Eastern District of Texas
                          USDC No. 6:06-CV-103


Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.

PER CURIAM:*
      Enrique Akil Diaz, Texas prisoner # 1249219, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. § 1915A(b)(1) for
failure to state a claim upon which relief may be granted and as frivolous. We
review dismissals under § 1915A(b)(1) de novo. Velasquez v. Woods, 329 F.3d
420, 421 (5th Cir. 2003).



      *
       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should not be published and is not precedent except under the limited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. 06-41294

      For the first time on appeal, Diaz alleges that the defendants denied him
access to the courts by refusing to allow him to contact an inmate-witness in one
of his civil actions. As this claim was not raised below, it cannot be considered
on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999). In this court, Diaz does not argue that the district court erred by not
considering his retaliation claim or that his prior § 1983 claim was adversely
affected by the actions of the defendants. Accordingly, he has waived these
issues. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      Diaz argues that the hearing held by the magistrate judge pursuant to
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), was improper because it was
akin to a bench trial, and he had filed a jury trial demand. A Spears hearing is
a hearing in the nature of a motion for a more definite statement, not a bench
trial, and the hearing in this case was not improper. See Wilson v. Barrientos,
926 F.2d 480, 482 (5th Cir. 1991). Diaz additionally asserts that the district
court exceeded the scope of its authority by determining that the appeal he
wished to take from the dismissal of his California 28 U.S.C. § 2254 application
was without merit. However, the district court must determine whether an
allegedly impeded claim was nonfrivolous in a case involving an allegation of
denial of access to the courts. See Christopher v. Harbury, 536 U.S. 403, 415
(2002).
      Diaz argues that he was denied access to the courts because the
defendants’ actions impeded his legal claims. He asserts that he was prejudiced
because his initial Texas § 2254 application was never transmitted to the district
court. He admitted, however, that he was able to file this § 2254 application two
months later. As Diaz did not allege that the delay prejudiced him, this
allegation fails to state a claim for denial of access to the courts. See Richardson
v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988).
      Diaz maintains that the appeal that he wished to take from the dismissal
of his California § 2254 application was not frivolous because he had no state

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                                  No. 06-41294

remedies to exhaust and because he had no ability to access California legal
materials in order to exhaust state remedies. Diaz, however, did have state
remedies to exhaust, and his lack of access to California legal materials would
not excuse his failure to exhaust. Diaz has not shown that the district court
erred by determining that the appeal he wished to take would have been
frivolous.   See Christopher, 536 U.S. 417-22.    Accordingly, we affirm the
judgment of the district court.
      The district court's dismissal of Diaz's complaint 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). We caution Diaz 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 § 1915(g).
      AFFIRMED, SANCTION WARNING ISSUED.




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