                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 April 3, 2003
                        ____________________
                                                       Charles R. Fulbruge III
                           No. 03-10034                        Clerk
                         Summary Calendar
                       ____________________

                       BRUCE WAYNE WORTHY,

                                              Plaintiff-Appellant,

                              versus

               DONALD R. SCOGGIN, Attorney at Law,

                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                         (3:02-CV-2233-N)
_________________________________________________________________

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Bruce Wayne Worthy, Texas prisoner #912272, appeals, pro se,

the dismissal of his 42 U.S.C. § 1983 civil rights action for

failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2),

because the defendant, Worthy’s trial attorney, was not a state

actor for purposes of § 1983.     Apparently misunderstanding the

basis for the dismissal, Worthy contends only that he should have

been permitted to voluntarily dismiss his suit without prejudice,

allowing him to refile after he is able to meet the requirements of


     *
        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that this opinion should not be published and is not precedent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.
Heck v. Humphrey, 512 U.S. 477 (1994).     He does not challenge the

district court’s ruling that he failed to state a claim for which

relief could be granted because Scoggin is not a state actor for

purposes of 42 U.S.C. § 1983.    By failing to do so, Worthy has

waived the sole ground for appeal.   See Yohey v. Collins, 985 F.2d,

222, 224-25 (5th Cir. 1993).   The appeal is thus without arguable

merit and is dismissed as frivolous.   See Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

     The district court’s dismissal of Worthy’s complaint counts as

a “strike” for purposes of 28 U.S.C. § 1915(g), as does this

court’s dismissal of the instant appeal.    See Adepegba v. Hammons,

103 F.3d 383, 387 (5th Cir. 1996).   Worthy is cautioned 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”.   28 U.S.C. § 1915(g).

                APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED




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