                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 19, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-10624
                        Conference Calendar


JOSEPH JAMES FALCETTA, JR.,

                                    Plaintiff-Appellant,

versus

DAVID K. CHAPMAN,

                                    Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 4:06-CV-222
                      --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Joseph James Falcetta, Jr., Texas prisoner # 822447, appeals

the sua sponte dismissal for lack of subject matter jurisdiction

of his pro se lawsuit against former counsel.   Both Falcetta and

appellee David K. Chapman are residents of Texas; consequently,

diversity jurisdiction does not exist.   See 28 U.S.C. § 1332;

Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1258-59

(5th Cir. 1988).

     Falcetta conclusionally asserts that his claim presents a

federal question.   However, his allegations of “legal

     *
       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this opinion should not be published and is not precedent except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. 06-10624
                                 -2-

malpractice” demonstrate that his claim is for negligence, which

does not give rise to a claim under federal or constitutional

law.    See 28 U.S.C. § 1331.

       Dismissal for lack of subject matter jurisdiction was not

error.    This appeal is without arguable merit, is frivolous, and

is dismissed.    See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.

       The dismissal of the instant appeal counts as a strike for

purposes of 28 U.S.C. § 1915(g).     See Adepegba v. Hammons,

103 F.3d 383, 388 (5th Cir. 1996).    Falcetta is cautioned that if

he accumulates three strikes, he will be barred from proceeding

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).

       DISMISSED; SANCTION WARNING ISSUED.
