                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS         January 5, 2004
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-60628
                           Summary Calendar



VICTOR B. KEARLEY,

                                      Plaintiff-Appellant,

versus

J. STEWART PARRISH; JOHN DOES,

                                      Defendants-Appellees.

                          --------------------
             Appeal from the United States District Court
               for the Southern District of Mississippi
                        USDC No. 4:03-CV-190-BN
                          --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Victor B. Kearley, Mississippi prisoner #16946, appeals the

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

frivolous.     Kearley’s claim that counsel’s actions in defending

him were done under color of state law, thereby making counsel

liable under 42 U.S.C. § 1983 for ineffective assistance, is

without merit.     Polk County v. Dodson, 454 U.S. 312 (1981).       Nor

has Kearley stated a 42 U.S.C. § 1983 conspiracy claim upon which


     *
        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that this opinion should not be published and is not precedent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. 03-60628
                                -2-

relief could be granted, as he has failed to plead the operative

facts upon which his claim is based.    See Lynch v. Cannatella,

810 F.2d 1363, 1369-70 (5th Cir. 1987); see also Kane Enters. v.

MacGregor (USA) Inc., 322 F.3d 371, 374 (5th Cir. 2003).

     Because Kearley did not allege in the district court that

the state public defender system was unconstitutional, this court

need not consider this claim.   See Leverette v. Louisville Ladder

Co., 183 F.3d 339, 342 (5th Cir. 1999).    Kearley’s argument that

the district judge lacked jurisdiction due to an administrative

order of reassignment to another judge is without merit.

     Kearley’s appeal is without merit and is therefore DISMISSED

as frivolous.   See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5TH CIR. R. 42.2.   The dismissal of this appeal

as frivolous and the dismissal of the complaint by the district

court as frivolous both count as a strike for purposes of

28 U.S.C. § 1915(g).   See Adepegba v. Hammons, 103 F.3d 383, 388

(5th Cir. 1996).   Kearley is therefore 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).

     All outstanding motions are DENIED.

     APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED; MOTIONS

DENIED.
