          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                  October 21, 2008
                                No. 08-40001
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

CHARLES WESTERBY

                                            Plaintiff-Appellant

v.

GREG ABBOTT, Attorney General; WARDEN SMITH, Mark Stiles Unit;
UNIDENTIFIED PITTMAN, Captain; STACY DAVIS; JACK BIVEN, Unknown
Inmate

                                            Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:06-CV-248


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
      Charles Westerby, Texas prisoner # 579967, appeals the 28 U.S.C.
§ 1915(e)(2)(B)(i), (ii) dismissal of his 42 U.S.C. § 1983 complaint. The district
court held that Westerby’s complaint was barred by the limitations period.
Westerby has failed to brief the limitations issue on appeal, and, therefore, its




      *
      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should not be published and is not precedent except under the limited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. 08-40001

review is waived. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). Westerby’s motion to remand the case is denied.
      Westerby’s appeal is without arguable merit and is, thus, frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).         Accordingly, it is
dismissed. See 5TH CIR. R. 42.2. The district court’s dismissal of his complaint
and this court’s dismissal of his appeal both count as strikes for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Westerby is warned that if he accumulates three strikes, he will no longer be
allowed 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 § 1915(g).
      APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION
DENIED.




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