                                                        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. 04-30592
                         Conference Calendar



DANIEL MAGEE,

                                     Plaintiff-Appellant,

versus

TIM WILKINSON; NICOLE
SCOTT; ROGERS,
                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                  USDC No. 1:02-CV-2364-FAL-JDK
                       --------------------

Before BARKSDALE, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

     Daniel Magee, Louisiana state prisoner # 405200, appeals

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

for failure to state a claim upon which relief may be granted.

Magee argues that prison officer Powe interfered with his

constitutional right of access to the courts by failing to timely

mail his state postconviction application.

     Magee’s arguments on appeal address only Powe’s alleged

violation of Magee’s right of access to the courts.      Magee has


     *
       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this opinion should not be published and is not precedent except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. 04-30592
                                -2-

not addressed the district court’s denial of his motion to amend

his complaint to add Powe as a defendant.     Thus, he has abandoned

any challenge to that ruling on appeal.     See Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993).     Because Powe was not a

defendant in the suit, Magee’s arguments regarding Powe’s denial

of his rights are not relevant to the disposition of this appeal.

The district court did not err in determining that Magee’s

complaint failed to state a claim upon which relief could be

granted.

     Magee’s appeal is without arguable merit and is thus

DISMISSED as frivolous.   See Howard v. King, 707 F.2d 215, 220

(5th Cir. 1983); 5TH CIR. R. 42.2.

     The district court’s dismissal of Magee’s complaint for

failure to state a claim and the dismissal of the instant appeal

as frivolous count as two strikes under 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).

Magee is cautioned that once he accumulates three strikes, he

will not be permitted 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).

     Magee’s motion for an appointment of counsel on appeal is

DENIED.

     APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.
