                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-40848
                        Conference Calendar


GERALD F. CAIN,

                               Plaintiff-Appellant,

versus

BETO I UNIT; CLASSIFICATION BETO I, Classification
Committees of the Beto I Unit; SECURITY PERSONNEL, Security
Personnel on Beto I Unit working U-Wing; WYNNE UNIT; WYNNE
CLASSIFICATION, Classification Committees on the Wynne Unit;
INVEST OFFICER WYNNE, Investigating Officers on Wynne Unit;
CHARLES POWELL; JANIE COCKRELL,

                               Defendants-Appellees.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                       USDC No. 6:03-CV-554-HWM
                         --------------------

Before BARKSDALE, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

     Gerald F. Cain, Texas prisoner # 812200, filed a 42 U.S.C.

§ 1983 complaint against all of the above defendants except

Cockrell.   Cain alleged that, despite his claim that his life was

endangered by his fellow inmate Charles Powell, prison officials

placed him in a position where he was stabbed by Powell.       Cain

later sought and was granted leave to amend his complaint to name


     *
       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this opinion should not be published and is not precedent except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. 04-40848
                                  -2-

Cockrell as the sole defendant.     Cain’s sole allegation against

Cockrell was that she had allowed her subordinates to violate his

Fourteenth Amendment rights.     The magistrate judge before whom

Cain had consented to proceed dismissed Cain’s lawsuit with

prejudice pursuant to 28 U.S.C. § 1915A as frivolous and for

failure to state a claim because Cain had alleged only a

respondeat-superior liability claim against Cockrell.

     Cain’s argument that the state actors in this case are not

entitled to Eleventh Amendment immunity is frivolous as none of

the defendants were dismissed from the lawsuit on the basis of

immunity.   Cain argues that, despite his unequivocal request to

amend his complaint to dismiss all defendants except Cockrell,

the magistrate judge erred in allowing him to do so.      This

argument is also frivolous.     As Cain concedes, the magistrate

judge was not required to act as Cain’s advocate.

     Cain also argues that the magistrate judge erred in failing

to hold a hearing to allow him an opportunity to present evidence

that would show that Cockrell indifferently implemented deficient

policies that led to the violation of his constitutional rights.

We do not consider Cain’s conclusional allegations that Cockrell

implemented such policies because they are made for the first

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

339, 342 (5th Cir. 1999).

     Cain’s appeal is without arguable merit, and it is dismissed

as frivolous.     See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
                            No. 04-40848
                                 -3-

219-10 (5th Cir. 1983).   The magistrate judge’s dismissal of

Cain’s complaint as frivolous and for failure to state a claim

and our dismissal of Cain’s appeal both count as strikes for

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

103 F.3d 383, 387-88 (5th Cir. 1996).      Cain has already received

one other strike.    Cain v. Ambriz, No. 04-40632 (5th Cir.

Sept. 28, 2004).    Accordingly, Cain shall no longer be allowed to

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; 28 U.S.C. § 1915(g) BAR IMPOSED.
