               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-10076
                        Conference Calendar



JIMMY L. BRUTON,

                                         Plaintiff-Appellant,

versus

PHILLIP MORRIS, INC.; GEORGE WEISSMAN, President/CEO Phillip
Morris, Inc.,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 6:99-CV-97-C
                       --------------------
                           June 14, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jimmy L. Bruton, Texas prisoner No. 817622, appeals the

district court’s dismissal of his civil rights complaint as

legally frivolous.   Bruton does not argue that the defendants are

state actors, which is required to support a claim under § 1983,

and he did not timely move to amend his complaint to seek

recovery on a different theory.   Polk County v. Dodson, 454 U.S.

312, 325 (1981); Travelers Ins. Co. v. Liljeberg Enters., Inc.,




     *
        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that this opinion should not be published and is not precedent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. 00-10076
                                -2-

38 F.3d 1404, 1407 n. 3 (5th Cir. 1994).   Accordingly, Bruton’s

appeal is frivolous and it IS DISMISSED.   5TH CIR. R. 42.2.

     The district court’s dismissal of Bruton’s complaint and

this court’s dismissal of the appeal as frivolous count as two

“strikes” for purposes of 28 U.S.C. § 1915(g).     See Adepegba v.

Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).   Bruton is

CAUTIONED that if he accumulates three “strikes” under § 1915(g),

he will not be able 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.      See

§ 1915(g).   Bruton’s motion for appointment of counsel in DENIED.

     APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
