                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-60345
                        Conference Calendar



ELLIS MANN,

                                    Plaintiff-Appellant,

versus

LEON SMITH; MAXINE SMITH; JOHN DOES,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 1:04-CV-469-GuRo
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Ellis Mann appeals the dismissal for lack of subject matter

jurisdiction of his 42 U.S.C. § 1983 lawsuit seeking to have

custody of his daughter restored to him.   He argues that the

dismissal was erroneous because the district court had

jurisdiction under 42 U.S.C. § 1983 and under 28 U.S.C. § 1332 as

he has recently moved to California.

     The district court lacked the authority to assume

jurisdiction over Mann’s attempt to modify the terms of a state-


     *
       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this opinion should not be published and is not precedent except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. 04-60345
                                  -2-

court child custody order.    See Rykers v. Alford, 832 F.2d 895,

900 (5th Cir. 1987); see also Chrissy F. by Medley v. Miss. Dept.

of Public Welfare, 995 F.2d 595, 599 (5th Cir. 1993).   The 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).   We caution Mann that the filing of frivolous appeals and

motions will invite the imposition of a sanction.

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
