                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 24, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 02-40158
                         Conference Calendar


STEVEN C. MOODY,

                                     Plaintiff-Appellant,

versus

JOHN S. APPLEMAN; KATHY MCCOLLUM; B. RICHARD; E. RICHARDSON,

                                     Defendants-Appellees.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                          USDC No. 1:00-CV-58
                         --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Steven Moody, Texas prisoner # 809008, appeals the district

court’s dismissal of his civil rights suit as frivolous and for

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) and

(ii).    He argues, as he did in the district court, that the clerk

of the state court and deputy clerks denied him access to the

courts when they refused to file his state petition when he first

submitted it.




     *
        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that this opinion should not be published and is not precedent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. 02-40158
                                 -2-

     To state a denial of access claim, the prisoner must

demonstrate that his position as a litigant has been prejudiced

by the defendants’ actions.    McDonald v. Steward, 132 F.3d 225,

230-31 (5th Cir. 1998).    The record and Moody’s allegations

demonstrate that he could not show how he was prejudiced by the

delayed filing of his petition in state court or that the

defendants were wrong to require Moody to file an affidavit

listing his prior suits.    The district court’s dismissal of

Moody’s complaint was not error.

     Further, Moody’s appellate arguments are without arguable

merit, and his appeal is dismissed as frivolous.    See Howard v.

King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.    The

dismissal of his appeal as frivolous and the district court's

dismissal count as two strikes for purposes of 28 U.S.C.

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

Cir. 1996).   Moody is warned that if he accumulates three

strikes, he may not proceed IFP in any civil action or appeal

while he is incarcerated or detained in any facility unless he is

in imminent danger of serious physical injury.     See id.; 28

U.S.C. § 1915(g).

     Moody’s motions to expand the record with new evidence and

for the appointment of counsel are denied.

     DISMISSED AS FRIVOLOUS; THREE-STRIKES WARNING ISSUED;

MOTIONS DENIED.
