                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 24, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-10931
                         Conference Calendar


PETER MARTIN BERNARD,

                                     Plaintiff-Appellant,

versus

BRANNIGAN, Correctional Officer; JOHN AND OR JANE DOE,

                                     Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                       USDC No. 2:05-CV-14
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Peter Martin Bernard, Texas prisoner # 581959, appeals the

dismissal of his pro se, in forma pauperis (IFP) 42 U.S.C. § 1983

complaint as frivolous and for failure to state a claim for which

relief can be granted.   In his complaint, he alleged that in July

2000, the defendants planted a shank in his cell in retaliation

for his filing a grievance against Brannigan regarding

Brannigan’s noncompliance with the prison guard dress code.

     Federal courts apply state personal-injury limitations

periods to actions brought under § 1983.       Burrell v. Newsome,

     *
       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this opinion should not be published and is not precedent except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. 05-10931
                                  -2-

883 F.2d 416, 418 (5th Cir. 1989).    The applicable Texas

limitations period is two years.     Ali v. Higgs, 892 F.2d 438,

439 (5th Cir. 1990).

     There is no dispute that Bernard’s claim accrued, at the

latest, on July 11, 2000, when he was released from solitary

confinement.    Thus, his complaint should have been filed on or

before July 11, 2002.    Although Bernard’s first § 1983 complaint

alleging the same claim was filed before the expiration of the

limitations period, because the complaint was dismissed without

prejudice for failure to pay the filing fee, it had no tolling

effect.    See Lambert v. United States, 44 F.3d 296, 298 (5th Cir.

1995).    Thus, Bernard’s current § 1983 complaint filed in 2005 is

untimely.    We affirm the judgment of the district court on this

basis.    Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).

     The district court’s dismissal of Bernard’s complaint as

frivolous and for failure to state a claim counts as a strike

under 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103 F.3d

383, 387 (5th Cir. 1996).    Bernard accumulated one previous

strike in Bernard v. Tong, No. 2:97-CV-0368 (N.D. Tex. Sept. 8,

1998).    Bernard is cautioned that if he accumulates three

strikes, he will not be allowed to 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 § 1915(g).

     AFFIRMED; SANCTION WARNING ISSUED.
