                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 28, 2007

                                                          Charles R. Fulbruge III
                            No. 05-51540                          Clerk
                          Summary Calendar




ROGER HUMMEL,

                                     Plaintiff-Appellant,

versus

JANIE MUNIZ,
formerly Law Librarian, Albert Hughes State Prison;
LARRY FEMRITE, Law Library, Prison Guard,
Albert Hughes State Prison;
FRANK D. HOKE, Program Administrator, Access to Courts,
Texas Department of Criminal Justice;
ANDY R. MASSINGILL,
Assistant Warden, Albert Hughes State Prison;
STEPHEN G. ROCKWELL,
Property Officer, Albert Hughes State Prison;
KELLI WARD,
Program Administrator, Prisoner Grievance Central Office,
Texas Department of Criminal Justice,

                                     Defendants-Appellees.



                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        USDC No. 6:04-CV-31
                       --------------------
                               No. 05-51540
                                    -2-

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Roger Hummel, a Texas prisoner, has filed a notice of appeal

from the denial of his “Motion for Rule 60 Reconsideration of Dis-

missal,” which was filed following the dismissal with prejudice

pursuant to 28 U.S.C. § 1915(A) of his 42 U.S.C. § 1983 lawsuit,

for failure to state a claim.          Because it was filed more than 10

days after the entry of judgment, the “Motion for Rule 60 Recon-

sideration of Dismissal” was essentially a FED. R. CIV. P. 60(b) mo-

tion for relief from judgment.         See Harcon Barge Co. v. D & G Boat

Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc).               Also,

because Hummel filed his motion more than 10 days after the May 20,

2005, entry of the judgment of dismissal, his notice of appeal is

effective only as to the denial of the rule 60 motion, and the

underlying judgment is not before this court.            See FED. R. APP. P.

4(a)(1)(A), 4(a)(4)(A); Edwards v. City of Houston, 78 F.3d 983,

995 (5th Cir. 1996)(en banc).

     A Rule 60 motion is not a substitute for appeal from the un-

derlying judgment.      Travelers Ins. Co. v. Liljeberg Enter., Inc.,

38 F.3d 1404, 1408 (5th Cir. 1994).           Denial of a rule 60(b) motion

is reviewed for abuse of discretion.            Id.   It is not enough that

the granting     of   relief   might   have    been   permissible,   or   even

warranted.     “[D]enial must have been so unwarranted as to consti-



     *
        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. 05-51540
                                 -3-

tute an abuse of discretion.”    Seven Elves, Inc. v. Eskenazi, 635

F.2d 396, 402 (5th Cir. 1981).

     Hummel has not remotely made such a showing in his appellate

briefs.    His appeal is wholly without merit and is thus frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.

R. 42.2.    Accordingly, his appeal is DISMISSED.   The dismissal of

the instant appeal as frivolous and the district court’s dismissal

of his complaint for failure to state a claim each count as a

“strike” under the three-strikes provision of 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).   Hummel

is thus cautioned that, once 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).

     DISMISSED; SANCTION WARNING ISSUED.
