               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-30023
                        Conference Calendar



ROBERT W. JOHNSON,

                                         Plaintiff-Appellant,

versus

ERNEST RHODES; PATRICK B. STEWART,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                     USDC No. 98-CV-367-C-M1
                       --------------------
                           June 14, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

     Robert W. Johnson, La. prisoner #293212, appeals the

district court’s denial of his Rule 60(b) motion for relief.

Johnson filed a Rule 60(b) motion following the dismissal for

failure to state a claim of his 42 U.S.C. § 1983 action.    Johnson

contends that he is entitled to a refund of a portion of his

filing fee because the district court should have construed his

42 U.S.C. § 1983 petition as a habeas corpus petition.

     Johnson is not entitled to relief because the obligation of

a filing fee attaches at the time of filing and the obligation

     *
        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that this opinion should not be published and is not precedent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. 00-30023
                                 -2-

remains despite the disposition of the case.     See Hatchet v.

Nettles, 201 F.3d 651, 654 (5th Cir. 2000); Williams v. Roberts,

116 F.3d 1126, 1127 (5th Cir. 1997).    Further, the district court

properly dismissed Johnson’s § 1983 claim because a § 1983 action

may not be used to challenge the legality of a conviction.        See

Heck v. Humphrey, 512 U.S. 477, 489-90 (1994).    Since the

underlying claim for a refund is without merit and the district

court correctly dismissed the claim, Johnson cannot demonstrate

any of the factors entitling him to relief from the judgment.

See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.

1981).    Accordingly, the district court did not abuse its

discretion in denying Johnson’s Rule 60(b) motion.     See id.

Johnson’s appeal is dismissed as frivolous.    See Howard v. King,

707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2.

    Johnson is warned that the dismissals of his claim by the

district court for failure to state a claim and of his appeal by

this court as frivolous count as two strikes for purposes of 28

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

(5th Cir. 1996)("[D]ismissals as frivolous in the district courts

or the court of appeals count [as strikes] for the purposes of [§

1915(g)].").    We caution Johnson that once 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.   See 28 U.S.C. § 1915(g).

     APPEAL DISMISSED.   SANCTIONS WARNING ISSUED.
