                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 20, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-61087
                         Conference Calendar


DAVID WARD,

                                     Plaintiff-Appellant,

versus

GEORGE AGNEW,

                                     Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 3:03-CV-1054-BN
                      --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     David Ward, Mississippi state prisoner # 42745, appeals

the 28 U.S.C. § 1915(e)(2)(B)(i) dismissal as legally frivolous

of his 42 U.S.C. § 1983 lawsuit against George Agnew, retained

to serve as Ward’s counsel in a criminal matter.    Ward contends

that the district court erred in dismissing his case because

Agnew deprived him of his Sixth Amendment rights.   This court

reviews the district court’s dismissal for abuse of discretion.

See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).


     *
        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that this opinion should not be published and is not precedent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. 03-61087
                                - 2 -

     The district court concluded that Ward’s lawsuit was

foreclosed by Polk County v. Dodson, 454 U.S. 312, 325 (1981),

because Agnew was not acting under the color of state law for

the purposes of 42 U.S.C. § 1983 liability.     The district court’s

reliance on Dodson was appropriate; and it is uncontested by

Ward on appeal.    Since the allegations in Ward’s complaint were

squarely foreclosed by Dodson, the district court did not abuse

its discretion in dismissing his lawsuit as frivolous.      See

Siglar, 112 F.3d at 193.

     Because Ward has not shown that there is a nonfrivolous

appellate issue, his appeal is also dismissed as frivolous.

See 5TH CIR. R. 42.2; Brinkmann v. Johnston, 793 F.2d 111, 112-13

(5th Cir. 1986).

     The dismissal of the appeal as frivolous and the

district court’s dismissal of Ward’s 42 U.S.C. § 1983 action

as frivolous both count as “strikes” under the three-strikes

provision of 28 U.S.C. § 1915(g).    See Adepegba v. Hammons,

103 F.3d 383, 387-88 (5th Cir. 1996).      Therefore, Ward is warned

that if he accumulates three “strikes,” 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; SANCTIONS WARNING ISSUED.
