                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 21, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-60453
                          Summary Calendar



GARY LEE,

                                    Plaintiff-Appellant,

versus

B. BROWN,

                                    Defendant-Appellee.

                         --------------------
            Appeal from the United States District Court
              for the Northern District of Mississippi
                       USDC No. 3:04-CV-40-P-D
                         --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Gary Lee, Mississippi prisoner # 39820, seeks leave to

proceed in forma pauperis (“IFP”) to appeal the dismissal of his

42 U.S.C. § 1983 complaint for failure to state a claim upon

which relief may be granted pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii).   The district court denied IFP, certifying

that the appeal was not taken in good faith.   By moving for leave

to proceed IFP, Lee is challenging the district court’s




     *
       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this opinion should not be published and is not precedent except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. 04-60453
                                  -2-

certification.     See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

1997); FED. R. APP. P. 24(a)(5).

     Lee argues that the district court erred in dismissing his

challenge to the disciplinary proceeding and failed to address

his argument that the defendants interfered with his right of

access to the courts by refusing to allow him to copy his habeas

petition, placing him in confinement for a disciplinary violation

for 20 days without legal assistance, and thereby prevented him

from filing his habeas petition.    He also argues that the

district court erred in dismissing his complaint without giving

him an opportunity an opportunity to amend it.

     Lee has not demonstrated any nonfrivolous ground for appeal.

Lee’s challenge to the disciplinary proceeding lacked merit as he

was provided due process in the disciplinary proceeding, and his

allegations did not demonstrate that the defendants had violated

his constitutional rights.    Lee has not shown that the district

court erred in determining that Lee raised his claim that he was

denied access to the courts for the first time in a motion for an

emergency order and that Lee was required to raise this new claim

in a separate civil action after he had exhausted his

administrative remedies.

     Based on the foregoing, Lee has failed to show that his

appeal involves “‘legal points arguable on their merits (and

therefore not frivolous).’”     Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983).    His motion for IFP is therefore DENIED and his
                            No. 04-60453
                                 -3-

appeal is DISMISSED as frivolous.    See Baugh, 117 F.3d at 202 &

n.24.   Lee’s motion for appointment of counsel on appeal is also

DENIED.

     The district court’s dismissal of Lee’s complaint for

failure to state a claim, and the dismissal of his appeal as

frivolous by this court, each count as “strikes” under 28 U.S.C.

§ 1915(g).    See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th

Cir. 1996).   Lee is be cautioned that once he accumulates three

strikes, he may not proceed 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 28

U.S.C. § 1915(g).

     APPEAL DISMISSED; MOTIONS DENIED; SANCTION WARNING ISSUED.
