                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 20, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-20527
                         Conference Calendar


GUY L. ALLEN,

                                     Plaintiff-Appellant,

versus

WAYNE SCOTT, Director; KYLE RACKLEY; BOARD OF DIRECTORS,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-03-CV-1262
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Guy L. Allen, Texas prisoner #642038, appeals from the

district court’s dismissal with prejudice of his civil-rights

lawsuit, filed under 42 U.S.C. § 1983, as malicious pursuant to

28 U.S.C. § 1915A(b)(1).   The claims in Allen’s instant lawsuit

are duplicative of his claims in an earlier lawsuit that was

dismissed in district court as frivolous.      As his instant claims

were duplicative, the district court properly dismissed them as

malicious pursuant to 28 U.S.C. § 1915A(b)(1).      See Pittman v.

     *
        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that this opinion should not be published and is not precedent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. 03-20527
                                  -2-

Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson,

846 F.2d 1019, 1021 (5th Cir. 1988).

     As Allen’s appeal is without arguable merit, it is DISMISSED

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

1983); 5TH CIR. R. 42.2.   Allen’s motion for appointment of

counsel on appeal is DENIED.

     The dismissal of the instant appeal as frivolous and the

district court’s dismissal of Allen’s instant lawsuit both count

as strikes under the Prison Litigation Reform Act.     See Adepegba

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

previously received two strikes when his civil-rights lawsuits

were dismissed as frivolous in Allen v. Bluebird Bus Co., No.

4:98-CV-3414 (S.D. Tex. July 29, 1999), and in Allen v. Weems,

No. 6:02-CV-56 (E.D. Tex. Apr. 8, 2002).    Because Allen has

accumulated at least three strikes under 28 U.S.C. § 1915(g), he

is BARRED from proceeding 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.   28 U.S.C. § 1915(g).   As Allen is not proceeding in

forma pauperis in the instant appeal, Allen is also WARNED that

sanctions may be imposed in response to future frivolous filings.

     APPEAL DISMISSED AS FRIVOLOUS; MOTION FOR APPOINTMENT OF

COUNSEL DENIED; 28 U.S.C. § 1915(g) BAR IMPOSED; SANCTIONS

WARNING ISSUED.
