         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                               October 24, 2007
                               No. 06-10173
                            Conference Calendar           Charles R. Fulbruge III
                                                                  Clerk

LEWIS L HOLLIE

                                         Plaintiff-Appellant

v.

ROBERT EASON, Warden, Price Daniel Unit; STEPHEN E BROWN,
Lieutenant, Price Daniel Unit; DENNIS HERRON, Major, Price
Daniel Unit; KYLE A HERRLEY, Captain, Price Daniel Unit;
THEREASE A KILDOW, Sergeant, Price Daniel Unit; DON JENKINS,
Sergeant, Price Daniel Unit

                                         Defendants-Appellees


                Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 5:05-CV-172


Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
     Lewis L. Hollie, Texas prisoner # 890306, proceeding pro se and in forma
pauperis, appeals the district court’s dismissal as frivolous of his 42 U.S.C.
§ 1983 complaint. After conducting a hearing pursuant to Spears v. McCotter,



     *
      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should not be published and is not precedent except under the limited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. 06-10173

766 F.2d 179 (5th Cir. 1985), the district court concluded that Hollie’s claims
lacked an arguable basis in fact or law.
      Hollie reasserts the factual allegation that he raised in his district court
complaint and at the Spears hearing, contending that defendant Therease A.
Kildow ignored his slow eating pass on May 10, 2005, when she ordered him to
stop eating. Hollie disregarded the order and finished eating. He contends that
the other defendants violated his constitutional rights by failing to intervene in
the incident.
      Hollie’s complaint lacks an arguable basis in law; the facts alleged cannot
establish that Hollie was deprived of the minimal civilized measure of life's
necessities and thus were not a violation of his Eighth Amendment rights. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994); Davis v. Scott, 157 F.3d 1003,
1005-06 (5th Cir. 1998). Additionally, Hollie now asserts that he is pursuing
claims under the Americans With Disabilities Act (ADA). He did not raise this
claim in the district court. Hollie’s conclusional assertions do not set forth a
claim for violation of the ADA. See 42 U.S.C. § 12101; Hall v. Thomas, 190 F.3d
693, 696 (1999).
      Hollie’s appeal is frivolous and is therefore dismissed. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. His motion for
appointment of counsel is denied.
      The dismissal of this appeal 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). Hollie is warned that if he accumulates three
strikes he may not 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 § 1915(g).
      APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING
ISSUED.



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