          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                 October 24, 2007
                                No. 07-10253
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

MICHAEL ANTHONY DAVIS

                                           Plaintiff-Appellant

v.

NFN BAKER, Mailroom Supervisor and Clerk, in her Individual and Official
Capacities

                                           Defendant-Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 4:06-CV-886


Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Michael Anthony Davis, Texas prisoner # 872268, appeals the dismissal
of his pro se, in forma pauperis (IFP), 42 U.S.C. § 1983 complaint as frivolous
under 28 U.S.C. §§ 1915(e) and 1915A(b). Davis’s claim that a prison official
violated his constitutional rights by opening Davis’s incoming legal mail outside
his presence is not cognizable under § 1983. See Brewer v. Wilkinson, 3 F.3d
816, 825 (5th Cir. 1993).


      *
      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should not be published and is not precedent except under the limited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. 07-10253

      Davis’s appeal lacks arguable merit, and it is dismissed as frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The
district court’s dismissal and the dismissal of the instant appeal count as strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). Davis also accumulated a strike in Davis v. Inmate Trust Fund, No.
A-03-CA-732-SS and a strike in Davis v. Baker, No. 4:07-CV-068-A. Accordingly,
Davis is now barred from proceeding 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). Davis’s motions for the appointment
of counsel and for oral argument are denied.
      APPEAL DISMISSED; MOTIONS DENIED; SANCTION IMPOSED.




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