                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-20411
                           Summary Calendar



RUDOLPH FOLEY,

                                      Plaintiff-Appellant,

versus

LYNN N. HUGHES, U.S. District Judge;
FORTUNATO P. BENAVIDES, U.S. Circuit Judge;
JODI T. RODRIGUE, Deputy Clerk, U.S. Court
of Appeals Fifth Circuit,

                                      Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:04-CV-718
                      --------------------

Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*

     Rudolph Foley, Texas prisoner #1005227, appeals the

dismissal as frivolous of his 42 U.S.C. § 1983 complaint.          In his

complaint, he alleged that District Court Judge Lynn N. Hughes

erred in failing to transfer his successive 28 U.S.C. § 2254 to

this court for the purpose of obtaining permission to file a

successive 28 U.S.C. § 2254.    He averred that Judge Fortunato P.

Benavides erred in denying his certificate of appealability

     *
       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this opinion should not be published and is not precedent except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. 04-20411
                                 -2-

(COA).    Lastly, Foley alleged that Rodrigue was liable for

failing to instruct him that he should file a motion for

authorization to file a successive 28 U.S.C. § 2254.

     Foley does not argue that the district court erred in

finding that Judge Benavides was entitled to absolute immunity.

Accordingly, Foley is deemed to have abandoned the claim on

appeal.    Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

     Foley avers that the district court erred in failing to give

him an opportunity to amend his complaint so as to state a cause

of action against Rodrigue.    Foley has not alleged an arguable

constitutional claim nor has he asserted any further facts that

he could have alleged in an amended complaint which would have

sustained an arguable claim against Rodrigue.     See Graves v.

Hampton, 1 F.3d 315, 319-20 (5th Cir. 1993).    Thus, the district

court did not err in dismissing Foley’s complaint without

affording him the opportunity to amend his complaint.

     Judge Hughes’s failure to transfer Foley’s 28 U.S.C. § 2255

petition to this court was performed in the exercise of his

judicial function.    Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir.

1995).    Thus, the district court did not err in finding that

Judge Hughes was entitled to absolute immunity.

     As Foley complained of Rodrigue’s performance of her routine

duties of notifying him to file a motion for authorization to

file a successive 28 U.S.C. § 2254 petition, Rodrigue was

entitled only to qualified immunity from suit.     Williams v. Wood,
                             No. 04-20411
                                  -3-

612 F.2d 982, 985 (5th Cir. 1980).    Nevertheless, Foley has not

shown reversible error because he cannot demonstrate prejudice as

a result of Rodrigue’s failure to advise him to file a motion for

authorization to file a successive 28 U.S.C. § 2254 petition.

Henthorn v. Swinson, 955 F.2d 351, 354 (5th Cir. 1992).       Nothing

prevented Foley from filing a motion for authorization to file a

successive 28 U.S.C. § 2254 petition.       In that motion, he could

have argued, as he does on appeal, that his second 28 U.S.C.

§ 2254 petition was based on newly discovered evidence.

     Based on the foregoing, the judgment of the district court

is AFFIRMED.    The district court’s dismissal of Foley’s complaint

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

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

Cir. 1996).    Foley 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 28 U.S.C. § 1915(g).

     AFFIRMED; SANCTION WARNING ISSUED.
