                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                              August 21, 2007
                   FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                No. 06-50800
                             Conference Calendar


DENNIS SMITH

                                            Plaintiff-Appellant

v.

JOHN TERRY

                                            Defendant-Appellee


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:05-CV-154


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Dennis Smith, Texas prisoner # 541423, appeals the district court’s denial
of his FED. R. CIV. P. 60(b) motion for relief from the judgment dismissing his 42
U.S.C. § 1983 action as frivolous. Smith has filed a motion to proceed in forma
pauperis (IFP) on appeal, challenging the district court’s certification that his
appeal was not taken in good faith pursuant to Baugh v. Taylor, 117 F.3d 197,
199-202 (5th Cir. 1997).



      *
      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should not be published and is not precedent except under the limited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. 06-50800

      Smith argues that the district court abused its discretion in denying his
FED. R. CIV. P. 60(b) motion for relief from judgment. Smith contends that the
district court should have granted his motion based on the loss of his mail,
referring to the amended complaint he allegedly mailed on September 15, 2005.
      Smith does not explain in his brief or IFP motion what was in his amended
complaint that would have prevented the district court from dismissing his
complaint as frivolous. The district court considered the additional allegations
that Smith made in his objections to the magistrate judge’s report, in effect
considering them as an amended complaint. The district court determined that,
given Smith’s admission that he could not prove a physical injury, any attempt
to amend the complaint would be futile. Smith’s motion and brief do not
mention this ruling by the district court. The district court did not abuse its
discretion in denying Smith’s Rule 60(b) motion. See Travelers Ins. Co. v.
Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 (5th Cir. 1994).
      The district court’s certification that Smith’s appeal is not taken in good
faith is upheld, Smith’s motion for IFP is denied, and this appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      Smith is hereby informed that the dismissal of this appeal as frivolous
counts as a strike for purposes of 28 U.S.C. § 1915(g).         See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We caution Smith that once he
accumulates three strikes, he may not 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).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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