                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 17, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-10927
                        Conference Calendar



JAMES KEVIN KELCH,

                                    Plaintiff-Appellant,

versus

JOHNSON COUNTY SHERIFF DEPARTMENT;
BOB ALFORD, Sheriff; COUNTY COMMISSIONERS COURT;
R.C. MCFALL, Commissioner; TROY THOMPSON, Commissioner,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 4:03-MC-26-A
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     James Kevin Kelch, Texas prisoner #1008891, filed a state

court action against the defendants, alleging, inter alia, that

he had been mistreated while in custody.   He then filed a notice

of removal seeking to have the case removed to federal court,

which the district court denied.




     *
        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that this opinion should not be published and is not precedent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. 03-10927
                                -2-

     As found by the district court, only a defendant may remove

a civil action from state court to federal court.     McKenzie v.

United States, 678 F.2d 571, 574 (5th Cir. 1982); 28 U.S.C.

§ 1441(a).   Kelch’s appeal is without arguable merit, is

frivolous, and is therefore DISMISSED.    See Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

     This court’s dismissal of the instant appeal counts as a

“strike” for purposes of 28 U.S.C. § 1915(g).    See Adepegba v.

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

CAUTIONED that if he accumulates three strikes under 28 U.S.C.

§ 1915(g), he will not be able to 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 28 U.S.C. § 1915(g).

     APPEAL DISMISSED; STRIKE WARNING ISSUED.
