                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                February 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-20529
                         Conference Calendar


THOMAS A. GOODEN,

                                     Plaintiff-Appellant,

versus

WAYNE SCOTT, Director, Texas Department
of Criminal Justice - Institutional Division,

                                     Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CV-2272
                      --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Thomas A. Gooden, Texas prisoner # 1151163, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).      He argues

that the district court erred in dismissing his complaint as

barred by the two-year statute of limitations because he was not

aware of his claim until July 29, 2000, when he was not released

as scheduled.   He argues that he was required to serve more than

his five-year sentence because he did not receive credit for time

     *
        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that this opinion should not be published and is not precedent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. 03-20529
                                  -2-

he spent on probation from January 1993 through August 1, 1995;

he raised this argument in grievances filed in 1996 and 1997.

Because Gooden was aware of his claim in 1996 or 1997, but he did

not file this civil action until May 24, 2002, the district court

did not err in dismissing his action as barred by the two-year

statute of limitations.    See Gartrell v. Gaylor, 981 F.2d 254,

257 (5th Cir. 1993).    Moreover, Gooden’s action is not cognizable

under 42 U.S.C. § 1983 as he has not shown that his sentences

were reversed on direct appeal, expunged by executive order,

declared invalid by an authorized state tribunal, or called into

question by a federal court’s issuance of a writ of habeas corpus

under 28 U.S.C. § 2254.    See Heck v. Humphrey, 512 U.S. 477, 486-

87 (1994); Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000).

     For the first time on appeal, Gooden raises claims that

prison officials violated his rights under the Fifth, Eighth,

Ninth, Thirteenth, and Fourteenth Amendments and under 18 U.S.C.

§§ 241, 242, and 246.   He also argues for the first time on

appeal that he was denied access to the courts and that prison

officials sprayed him with mace and refused to allow him to take

a shower during the following 24 hours.     This court will not

consider claims raised for the first time on appeal.     See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999).

     Gooden’s appeal is without arguable merit and, therefore, it

is DISMISSED as frivolous.    See Howard v. King, 707 F.2d 215,
                            No. 03-20529
                                 -3-

219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.   The district court’s

dismissal of his complaint under 28 U.S.C. § 1915 and this

court’s dismissal of his appeal as frivolous both count as

strikes under 28 U.S.C. § 1915(g).   Adepegba v. Hammons, 103 F.3d

383, 388 (5th Cir. 1996).   Gooden is cautioned that if he

accumulates three “strikes” under 28 U.S.C. § 1915(g), he will

not be able 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.

28 U.S.C. § 1915(g).   Gooden’s request for a temporary

restraining order and preliminary injunction is denied.

     APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING ISSUED.
