                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT



                                No. 01-50149
                              Summary Calendar



                                STEVEN HARM,

                                                Plaintiff-Appellant,

                                   versus

                         TERRY R. HASSEL; JIMMY R.
                       LAWSON; RODNEY GEBERT; BENNY
                       BOYKIN; TRAVIS BLACK; ROBERT
                      LUMMUS; MONTE CULAME; RANDY B.
                      DANIEL; CLAUDE BILL; REGINALDO
                     STANLEY, DR.; ROCHELLE MCLANNEY;
                        D.D. SANDERS, Warden; UTMB
                   CORRECTIONAL MANAGEMENT HEALTHCARE,

                                                    Defendants-Appellees.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                         USDC No. W-99-CV-292
                         --------------------
                             July 17, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

            Steven Harm, Texas inmate #701786, seeks leave to proceed

in forma pauperis (“IFP”) on appeal, following the district court’s

grant of the defendants’ motion for summary judgment and dismissal

of his 42 U.S.C. § 1983 complaint for failure to state a claim upon

which    relief   can   be   granted.    By    moving   for   IFP,   Harm   is

challenging the district court’s certification that he should not

     *
         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opinion should not be published and is not precedent except under the limited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. 01-50149
                                    -2-

be granted IFP status because his appeal is not taken in good

faith.    See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

            Harm has failed to establish that his appeal involves

nonfrivolous legal issues and is, therefore, taken in good faith.

See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).        Harm failed

to present any evidence, other than his own conclusional assertions

of retaliation, to rebut the defendants’ summary judgment evidence

showing that Harm was disciplined and his custody classification

was changed for failing to obey prison rules and not because he had

filed grievances against prison officers.        See Woods v. Smith, 60

F.3d 1161, 1164 (5th Cir. 1995).

            Harm failed to raise a nonfrivolous issue with respect to

the medical care provided to him by the prison medical staff for

his hernia condition.       Harm did not present any credible evidence

to rebut the defendants’ medical evidence that Harm’s hernia

condition did not require surgery and that he had received the

proper treatment for his condition.        Harm failed to show that the

defendants   acted   with    deliberate   indifference   to   his   serious

medical needs.       See Norton v. Dimazana, 122 F.3d 286, 291-92

(1997).

            Harm also failed to show that the district court judge

improperly weighed the evidence or failed in any way to act

impartially during the proceeding.         Harm failed to present any

evidence that the district court judge held an extrajudicial bias

against him or that there was a reasonable basis for questioning

the district court judge’s impartiality.       See United States v. MMR
                             No. 01-50149
                                  -3-

Corp., 954 F.2d 1040, 1045-46 (5th Cir. 1992); 28 U.S.C. § 455(a),

(b).

           A   district   court   shall   dismiss   a   case   whenever   it

determines that the action fails to state a claim on which relief

may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The district court

properly dismissed the complaint based on the record presented.

           Harm has failed to raise any nonfrivolous issues on

appeal. Harm’s motion for IFP should be denied and his appeal

should be dismissed as frivolous.         See Baugh, 117 F.3d at 202 &

n.24; 28 U.S.C. § 1915(e)(2)(B)(i); 5th Cir. R. 42.2.

           The district court’s dismissal of Harm’s complaint for

failure to state a claim and this court’s dismissal of his appeal

as frivolous each count as a “strike” for purposes of 28 U.S.C.

§ 1915(g).     See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).   Harm is cautioned that if he accumulates three strikes, he

will not be able to proceed IFP in any civil action or appeal while

he is imprisoned “unless [he] is under imminent danger of serious

physical injury.”    28 U.S.C. § 1915(g).

           Harm’s motion for appointment of counsel is also DENIED

as moot.

          IFP DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED;
MOTION FOR APPOINTMENT OF COUNSEL IS DENIED AS MOOT.
