                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 18, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41523
                         Summary Calendar



                        CARL RAYMOND DOLAN,

                       Plaintiff-Appellant,

                              versus

                      J. KEITH GARY; ET AL.,

                            Defendants,

J. KEITH GARY; UNKNOWN OFFICERS of Grayson County Texas; NEOSHA
TRIMBLE; SHEILA RATHFON; CONTROL MONITOR FNU PICKETT; GRAYSON
COUNTY JAIL; GRAYSON COUNTY COMMISSIONERS,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 4:02-CV-286
                       --------------------

Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:*

     Carl Raymond Dolan, Texas prisoner #1004499, appeals the

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

frivolous and for failure to state a claim pursuant to 28 U.S.C.




     *
       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this opinion should not be published and is not precedent except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. 04-41523
                                  -2-

§ 1915(e).    His civil rights lawsuit alleged that the defendants

failed to protect him from an attack by another inmate in the

Grayson City Jail.

     Dolan does not address the district court’s finding that the

defendant’s actions were, at most, negligent, and did not

constitute deliberate indifference, and he alleges no facts which

would indicate that the defendants knew Dolan faced an excessive

risk of harm from the other inmate on the day in question.      See

Farmer v. Brennan, 511 U.S. 825, 833, 837 (1994).    Dolan’s

arguments that the district court erred in dismissing his lawsuit

without first allowing discovery, that the district court erred

in not allowing him to have a jury trial, and that the dismissal

of his lawsuit constituted a denial of access to the courts are

without merit.   The district court can dismiss a suit “at any

time” if it determines that it is frivolous or fails to state a

claim.   See 28 U.S.C. § 1915(e).   In addition, the district court

did not abuse its discretion in denying Dolan’s motions for

appointment of counsel.    See Cupit v. Jones, 835 F.2d 82, 86 (5th

Cir. 1987).

     As Dolan’s appeal lacks arguable merit, it is DISMISSED AS

FRIVOLOUS.    See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983); 5TH CIR. R. 42.2.   The district court’s dismissal of his

case as frivolous and for failure to state a claim and the

dismissal of the instant appeal as frivolous count as two strikes

under 28 U.S.C. § 1915(g).    See Adepegba v. Hammons, 103 F.3d
                          No. 04-41523
                               -3-

383, 385-87 (5th Cir. 1996).   Dolan is 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).

     APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
