                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 January 8, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-20352
                           Summary Calendar


MIKE LEAL GUERRERO,

                                      Plaintiff-Appellant,

versus

MELANIE POTTER; DR. LARRY LARGENT;
NOORALLAN MACKWANI; DR. NAIK KOKILA,

                                      Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:06-CV-881
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges

PER CURIAM:*

     Mike Leal Guerrero, Texas prisoner # 567945, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint, in

which he raised claims of deliberate indifference to his serious

medical needs.    The district court dismissed the complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for

failure to state a claim upon which relief could be granted.           The

district court determined that Guerrero’s complaint was barred by




     *
       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this opinion should not be published and is not precedent except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. 06-20352
                                  -2-

the applicable limitations period and, alternatively, that

Guerrero was not entitled to relief on the merits of his claim.

     Guerrero’s civil rights complaint was not filed within two

years of the date that he learned of his injury.         Owens v. Okure,

488 U.S. 235, 249-50 (1989); Piotrowski v. City of Houston, 51

F.3d 512, 516 (5th Cir. 1995); TEX. CIV. PRAC.   AND   REM. CODE

§ 16.003(a).    His previous complaint challenging the actions of

the defendants was dismissed voluntarily pursuant to Guerrero’s

motion and thus did not toll the limitations period.         See Burge

v. Parish of St. Tammany, 996 F.2d 786, 787 (5th Cir. 1993);

Guaranty County Mut. Ins. Co. v. Reyna, 700 S.W.2d 325, 327 (Tex.

App. 1985).

     Guerrero’s appeal is without arguable merit and is

frivolous.     See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983).   Because the appeal is frivolous, it is dismissed.         See

5TH CIR. R. 42.2.   Guerrero is cautioned that the dismissal of

this appeal as frivolous, and the district court’s dismissal of

his complaint as frivolous, count as strikes under 28 U.S.C.

§ 1915(g).     See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th

Cir. 1996).    He is cautioned that if he accumulates three strikes

under § 1915(g), he will not be able to proceed in forma pauperis

(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.      See § 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
