               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-41478
                        Conference Calendar



THEODORE SIMMONS,

                                         Plaintiff-Appellant,

versus

MARY GOTHCHER, Individually and in official
capacity; KENNETH BOWN, DR., Individually and
in official capacity; BELINDA KRIEG;
Individually and in official capacity;
JOHN HARRIS, Individually and in official
capacity,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:01-CV-390
                       --------------------
                          August 20, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     Theodore Simmons, Texas prisoner # 637798, 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.

In his complaint, Simmons averred that Mary Gotcher, Kenneth

Bown, and Belinda Krieg retaliated against him for filing a

     *
        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that this opinion should not be published and is not precedent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. 01-41478
                                 -2-

lawsuit by writing in his medical records that he had poor

hygiene.    Simmons also contended that one of the defendants, John

Harris, a practice manager at the Michael Unit of TDCJ-ID,

intercepted a letter that he had written complaining of the other

defendants’ retaliatory behavior.

     Simmons does not argue that the district court erred in

dismissing his claim against Harris.    The issue is therefore

waived.    See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).

     Our review of the record and pleadings indicates that the

district court did not err in dismissing Simmons’ complaint as

frivolous.    See Black v. Warren, 134 F.3d 732, 734 (5th Cir.

1998).    Because Simmons was not exhibiting good hygiene at the

time the notations began to appear, he has failed to show that

but for his lawsuit, the defendants would not have noted that he

had poor hygiene.    See Woods v. Smith, 60 F.3d 1161, 1166 (5th

Cir. 1995).    Further, Simmons’ claim that he was denied medical

treatment is belied by the record.    Simmons was repeatedly seen

by the medical staff for his skin disorder.

     Simmons’ appeal is without arguable merit and is dismissed

as frivolous.    See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983).    The dismissal of Simmons’ appeal as

frivolous counts as a “strike” for the purposes of 28 U.S.C.

§ 1915(g), as does the district court’s dismissal of his 42

U.S.C. § 1983 complaint as frivolous and for failure to state a
                           No. 01-41478
                                -3-

claim.   See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996).   Additionally, Simmons garnered one “strike” when a

previous 42 U.S.C. § 1983 suit was dismissed by the district

court for failure to state a claim.   See Simmons v. Murphy, No.

01-40652 (5th Cir. April 25, 2002).   Simmons is informed that he

has now accumulated three “strikes” under 28 U.S.C. § 1915(g) and

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

     APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
