                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 3, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-11334
                         Summary Calendar



ALVIN S SANDERSON

                     Plaintiff - Appellant

     v.

AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE CO

                     Defendant - Appellee

                       --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                        USDC No. 7:04-CV-74
                       --------------------

Before KING, DeMOSS and PRADO, Circuit Judges.

PER CURIAM:*

     Alvin S. Sanderson, Texas prisoner # 250283, moves for leave

to proceed in forma pauperis (IFP) in this appeal from the

district court’s dismissal of his complaint as time-barred.

Invoking diversity jurisdiction, Sanderson sued American General

Life & Accident Insurance Co. (American General) for fraud,

fraudulent inducement, fraudulent concealment, fraudulent

misrepresentation, and breach of contract, relating to

Sanderson’s failure to receive payment of insurance proceeds from


     *
       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this opinion should not be published and is not precedent except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. 04-11334
                                -2-

four life insurance policies for which he was named the primary

beneficiary.   Sanderson argues that: (1) the magistrate judge

lacked authority to issue the second report and recommendation;

(2) the district court erred by failing to conduct a de novo

review of the record and by failing to address the objections to

the magistrate judge’s second report; (3) the district court did

not provide Sanderson with a sufficient opportunity to develop

his fraudulent concealment claim; and (4) Sanderson’s motion to

alter the judgment was timely filed.

     Even if we consider, arguendo, Sanderson’s objections to the

second report and his motion to alter the judgment, he has not

raised a nonfrivolous issue for appeal.   The magistrate judge had

the authority to issue the second report and recommendation.      See

28 U.S.C. § 636(b).   The adoption of this report prior to

Sanderson’s filing his objections to the report did not prejudice

Sanderson because his objections did not raise any nonfrivolous

issues.   See McGill v. Goff, 17 F.3d 729, 731 (5th Cir. 1994),

overruled on other grounds, Kansa Reins. Corp. v. Congressional

Mortgage Co., 20 F.3d 1362, 1373-74 (5th Cir. 1994).     Sanderson

admittedly was aware that he had not received payment of the life

insurance proceeds in June 1999, and he suspected wrongdoing at

that point, going so far as to ask American General to

investigate possible criminal activity.   American General stated

that it had sent the insurance proceeds payable to Sanderson, to

Sanderson’s then wife, Margot Sanderson, as Sanderson had
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                                  -3-

requested.   In September 1999, Sanderson received purported

copies of the cancelled checks showing the disbursement of the

insurance proceeds.    By that time, Sanderson should have been

aware of his causes of action.    Accordingly, Sanderson has not

raised a nonfrivolous issue for appeal regarding the district

court’s determination that his suit was barred by the statute of

limitations because it was filed over four years later.        See

Anderson v. Cocheu, 176 S.W.3d 685, 689 (Tex. App. 2005).       His

contention that the limitations period should be tolled or that

the defendant should be estopped from asserting limitations due

to fraudulent concealment is frivolous.     See Armstrong v.

American Home Shield Corp., 333 F.3d 566, 570 (5th Cir. 2003);

Cass v. Stephens, 156 S.W.3d 38, 63 (Tex. App. 2004).

     Accordingly, we uphold the district court’s certification

that the appeal presents no nonfrivolous issues.    Sanderson’s

motion for leave to proceed IFP on appeal is denied, and his

appeal is dismissed as frivolous.     See Baugh, 117 F.3d at 202

n.24.

     The district court’s dismissal of Sanderson’s complaint as

frivolous and this dismissal both count as strikes under 28

U.S.C. § 1915(g).     See Adepegba v. Hammons, 103 F.3d 383, 387-88

(5th Cir. 1996).    Sanderson is warned that if he accumulates a

third strike, he may not proceed IFP in any civil action or

appeal filed while he is incarcerated or detained in any facility
                           No. 04-11334
                                -4-

unless he is under imminent danger of serious physical injury.

See 28 U.S.C. § 1915(g).

     MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.
