                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 27, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-41728
                           Summary Calendar



FRED FRANKLIN ALEXANDER,

                                     Plaintiff-Appellant,

versus

SHERRI L. MILLIGAN; ROBERT HERERRA; SUSAN L. SCHUMACHER,

                                     Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:05-CV-203
                       --------------------

Before REAVLEY, STEWART and OWEN, Circuit Judges.

PER CURIAM:*

     Fred Franklin Alexander, Texas prisoner # 632874, appeals

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

pursuant to 28 U.S.C. § 1915A(b)(1).    We review the district

court’s dismissal of his suit de novo.

     Alexander is correct that the district court erred in

finding that he did not timely file objections to the magistrate

judge’s report.   Moreover, because the objections were filed

within 10 days of the final judgment, the objections should have


     *
       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this opinion should not be published and is not precedent except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. 05-41728
                                 -2-

been construed by the district court as a FED. R. CIV. P. 59(e)

motion.   See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th

Cir. 1994); United States v. Gallardo, 915 F.2d 149, 150 n.2 (5th

Cir. 1990).   Because Alexander’s appeal is frivolous, we

pretermit the jurisdictional issue presented by the failure of

the district court to rule on the Rule 59(e) motion.   See FED. R.

APP. P. 4(a)(4)(A)(iv); Burt v. Ware, 14 F.3d 256, 260-61 (5th

Cir. 1994); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.

2000).

     Alexander has not challenged the district court’s findings

that he failed to state a claim of an unconstitutional denial of

property and that he failed to state a claim of retaliation.

These claims have been abandoned.    See Yohey v. Collins, 985 F.2d

222, 225 (5th Cir. 1993).

     Alexander’s allegations of perjury, conspiracy, and court

bias are conclusory and unsupported.    See Brinkmann v. Johnston,

793 F.2d 111, 113 (5th Cir. 1986).   Moreover, his assertions of

perjury do not indicate any reversible error by the district

court because the district court’s dismissal of his complaint

relied neither on the testimony of Officer Satterwhite and Warden

Pratt nor on a finding that the defendants properly followed

prison policy in disposing of Alexander’s legal materials.

     With respect to Alexander’s claim of the denial of access to

courts, he has not shown that he will suffer actual injury in any

legal proceeding based upon the destruction of a probable cause
                            No. 05-41728
                                 -3-

statement relating to a 1980 conviction for burglary that was

used to enhance his current sentence.      See Lewis v. Casey, 518

U.S. 343, 351-52, 355 (1996).    By pleading true to the

enhancement, Alexander waived his challenge to the 1980

conviction.    Cook v. Lynaugh, 821 F.2d 1072, 1075 (5th Cir.

1987).

     Even assuming Alexander could collaterally challenge his

1992 conviction, more than 15 years after his sentence was

imposed, and that his habeas petition would not otherwise be

procedurally barred, he cannot show that he would suffer any

actual injury during a legal proceeding because of the now-

destroyed probable cause statement.     The probable cause statement

allegedly provided that he committed the offense of burglary on

March 10, 1980.   Alexander can demonstrate via documents that are

already in his possession that there was some confusion or error

regarding the date his burglary offense was committed.     As

Alexander concedes, however, the Texas Court of Criminal Appeals

has determined that the burglary offense occurred on March 9,

1980.    See Ex parte Alexander, 685 S.W.2d at 59.   Moreover,

according to Alexander, the probable cause statement indicated

that he committed the offense of burglary.     Thus, the probable

cause statement tended to prove, not disprove, that he committed

the offense of burglary.

     Alexander’s appeal is frivolous and is dismissed.      See See

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R.
                           No. 05-41728
                                -4-

42.2.   The district court’s dismissal of his § 1983 suit pursuant

to § 1915A and this court’s dismissal of this appeal as frivolous

each count as “strikes” for purposes of 28 U.S.C. § 1915(g).     See

Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).

Alexander has previously been issued two strikes.    See Alexander

v. Masters, No. 99-21085 (5th Cir. Apr. 14, 2000).   As Alexander

has at least three strikes under § 1915(g), he is barred from

proceeding IFP 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, 388 (5th Cir. 1996); § 1915(g).

     APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
