                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 24, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 02-41231
                        Conference Calendar



ADOLPHUS PETTY,

                                    Plaintiff-Appellant,

versus

DIANE KELLY; LARRY PARENT; ANTHONY M. HOLMES;
MARTHA JONES; ELIZABETH MILLER,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:02-CV-171
                       --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Adolphus Petty, Texas prisoner #781307, appeals from the

dismissal of his 42 U.S.C. § 1983 complaint for failure to

state a claim and as frivolous.   Petty moves for a temporary

restraining order and injunctive relief; his motions are DENIED.

     Petty contends that his right of access to the courts was

violated because he was not provided with the forms he requested,

in violation of prison policy; because gay sex that is tolerated


     *
        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that this opinion should not be published and is not precedent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. 02-41231
                                 -2-

in the law library interferes with his ability to conduct legal

research; because prison system staff attorneys are restricted

in the matters they may pursue; and because he was not able to

correspond with prisoner James Campbell after he was transferred

to the Michael Unit.    Petty did not raise his contentions

regarding gay sex and prison staff attorneys in the district

court.    He may not raise his new claims for the first time on

appeal.    See Leverette v. Louisville Ladder Co., 183 F.3d 339,

342 (5th Cir. 1999).

     Regarding Petty’s remaining access-to-courts contention,

he has not shown any actual injury arising from the defendants’

actions.    He was able to file the complaint in district court

that he sought to file.    See Lewis v. Casey, 518 U.S. 343, 349

(1996); Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993).

Moreover, any violation of prison rules and regulations did not

give rise to any constitutional violation.    Myers v. Klevenhagen,

97 F.3d 91, 94 (5th Cir. 1996).

     Petty contends that the prison system should not punish

or penalize him, or retaliate against him, for seeking relief

through the prison grievance system.    He alleges that he was

denied legal visits with other offenders as retaliation, but

he does not name any prisoners he wanted to visit.    Rather, he

refers to the district court record to support his contention.

He cannot incorporate the district court record by reference.

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
                             No. 02-41231
                                  -3-

     Petty does not allege facts in his appellate brief relevant

to any retaliation claim.     He has failed to brief retaliation

for appeal.   See Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987).

     Petty contends that he was deprived of his right against

arbitrary censorship due to the interference with his mother’s

mail and other missing legal mail.     Petty has failed to show

that his position as a litigant was prejudiced by the alleged

mail-tampering.     He does not show that he could have prevailed

in his previous lawsuit had nobody tampered with his mail.        See

Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).

     The district court did not err by dismissing Petty’s

complaint for failure to state a claim and as frivolous.

See Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998);

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

Petty’s appeal is without arguable merit and is frivolous.

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

5TH CIR. R. 42.2.   The district court’s dismissal of Petty’s

action and this court’s dismissal of his appeal each count as

a “strike” against Petty for purposes of 28 U.S.C. § 1915(g).

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

The district court also dismissed one of Petty’s previous

complaints as frivolous.     Petty v. Dominguez, No. 2:01-CV-00368

(N.D. Tex. May 22, 2002).     Petty thus has three “strikes” and is

warned that he may not proceed in forma pauperis (IFP) in any
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                                 -4-

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.   5TH CIR. R. 42.2.   28 U.S.C. § 1915(g)

SANCTION IMPOSED.
