                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 11, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-30708
                         Summary Calendar



EMMETT SPOONER, JR,

                                              Plaintiff-Appellant,

versus

JACK T. MARIONEAUX;
WEST BATON ROUGE PARISH SCHOOL BOARD;
STATE OF LOUISIANA,

                                             Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                       (3:03-CV-928-D-M2)
                      --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Emmett Spooner, now federal prisoner no.

03514-095, challenges the district court’s dismissal of his 42

U.S.C. § 1983 action and his application to proceed in forma

pauperis (“IFP”) on appeal.     He contests the district court’s

certification that his appeal is not taken in good faith.            See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.

§ 1915(a)(3); FED. R. APP. P. 24(a).


     *
       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this opinion should not be published and is not precedent except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.
     Spooner contends that his conviction was invalid because he

was charged with forgery but convicted of attempted forgery.      This

claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),

because it impugns the validity of a conviction that has not been

set aside on appeal or through other proper channels of post-

conviction relief.

     Spooner also contends that the statute under which he was

suspended without pay violates the Ex Post Facto Clause.          This

claims fails on several grounds:       It is untimely; it is barred by

the doctrines of claim preclusion and Eleventh Amendment immunity;

and it lacks merit because the statute is a nonpenal regulation

serving a legitimate governmental purpose.       See Smith v. Doe, 538

U.S. 84, 92 (2003).

     Spooner has not demonstrated that he will raise a nonfrivolous

issue on appeal.     See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983). Accordingly, Spooner’s motion to proceed IFP is DENIED, and

his appeal is DISMISSED as frivolous.      5TH CIR. R. 42.2; Baugh, 117

F.3d at 202 n.24.

     The dismissal of this appeal as frivolous counts as a “strike”

under the Prison Litigation Reform Act.       See Adepegba v. Hammons,

103 F.3d 383, 387 (5th Cir. 1996).           Accordingly, Spooner is

cautioned that if he accumulates three strikes, he will not be

permitted to proceed IFP 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.      28 U.S.C. § 1915(g).

                                   2
IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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