                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                   January 5, 2006

                                                       Charles R. Fulbruge III
                                                               Clerk
                             No. 04-41065
                           Summary Calendar


                        TROY RANDELL EDMON,

                                               Plaintiff-Appellant,

                                versus

    BRENDA CHANEY; LYNDA KITE; CAROL VEAZEY; DARREN WALLACE,

                                              Defendants-Appellees.


           Appeal from the United States District Court
                for the Southern District of Texas
                           (6:02-CV-113)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Troy Randell Edmon, Texas prisoner # 857046, sued under 42

U.S.C. § 1983, claiming:   prison officials denied him access to the

courts; deprived him of due process at a disciplinary hearing; and

retaliated against him for filing grievances against them.       After

conducting a hearing pursuant to Spears v. McCotter, 766 F.2d 179

(5th Cir. 1985), overruled on other grounds by Neitzke v. Williams,

490 U.S. 319, 324 (1989), the district court dismissed the complaint

as frivolous.

     *
        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that this opinion should not be published and is not precedent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.
      Proceeding in forma pauperis and pro se, Edmon contests that

dismissal and moves for appointment of counsel.                      That motion is

DENIED.

      Edmon contends that the district court erred by not allowing

him   to   amend    his   complaint     after      the    Spears    hearing.         This

contention    is    frivolous.        The       Spears    hearing   is   one    of    the

principal means for allowing a litigant to amend his complaint by

clarifying or fleshing out his allegations.                  See Eason v. Thaler,

14 F.3d 8, 9 (5th Cir. 1994).

      Edmon also contends that the district court should have given

him notice of the pending dismissal.                     Such a contention may be

liberally construed as a claim that the district court erred in

dismissing    his    complaint    as    frivolous.           This   claim      is    also

frivolous.    See 28 U.S.C. § 1915(e)(2)(B)(I) (Supp. 2005).                        Edmon

urges that the district court turned the Spears hearing into a

hearing    under      Federal    Rule       of    Civil    Procedure     56    when    it

considered matters outside the pleadings.                  This claim is likewise

without merit because it is based on Edmon’s misapprehension that

the Spears hearing was conducted under Rule 12(b)(6).

      Edmon contends that the district court should have ordered all

of the defendants to be served and that the district court should

have granted his motion for default judgment against those unserved

defendants.        Similarly, Edmon contends that the district court

erred in refusing to order the unserved defendants to provide



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discovery to Edmon prior to the Spears hearing.                 A district court

must dismiss a complaint that it determines to be frivolous.                     28

U.S.C. § 1915(e)(2)(B)(i).            Service upon the defendants prior to

such a dismissal is not required.               See id.      Thus, Edmon’s claim

that the unserved defendants should have been ordered to answer his

complaint and provide discovery is frivolous.

      Edmon’s contention that the district court erred in refusing

to   subpoena    Lynda   Kite    to    testify    at   the   Spears    hearing   is

unavailing, given the district court’s assumption that Edmon’s

allegations against Kite were true. Equally unavailing are Edmon’s

claims that the district court erred in dismissing parties over

which it lacked jurisdiction and in refusing to impose Rule 11

sanctions on those parties.           The parties over whom the court had no

jurisdiction and who were the subject of Edmon’s sanction motion

were parties to a wholly different lawsuit.

      Edmon’s appeal is without arguable merit; accordingly, it is

dismissed as frivolous.         See 5TH CIR. R. 42.2; Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983).               The district court’s and our

dismissals      both   count    as    strikes    for   purposes   of    28   U.S.C.

§ 1915(g).   See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.

1996).   Edmon has already received one other strike.                    Edmon v.

Dallas County Sheriffs Dep’t, 67 F. App’x 241, 241 (5th Cir. 2003)

(unpublished) (stating that “[t]he dismissal of this appeal counts

as a ‘strike’ for purposes of 28 U.S.C. § 1915(g)”).                  Accordingly,



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because Edmon has received three strikes, he shall no longer be

allowed 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).

   APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;

                               28 U.S.C. § 1915(g) BAR IMPOSED




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