                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 06-40112
                          Conference Calendar



AMOS FENNELL,

                                      Plaintiff-Appellant,

versus

SCHWEITZER, Judge; KIRK SISTRUNK, District Attorney; ROY
QUINTANILLA, Judge,

                                      Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 3:05-CV-548
                      --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Amos Fennell, Texas prisoner # 146234, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint for failure

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

§ 1915(e)(2).    We review a dismissal for failure to state a claim

de novo and we review a dismissal as frivolous for abuse of

discretion.     Morin v. Moore, 309 F.3d 316, 319 (5th Cir. 2002);

Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).



     *
       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this opinion should not be published and is not precedent except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. 06-40112
                                 -2-

     Fennell claims that he was retried on a case that had

previously been dismissed by Judge Schweitzer.    He asserts that

Judge Schweitzer made false statements and falsified state

documents.

     Fennel does not address the district court’s determination

that Judge Schweitzer is entitled to judicial immunity.      See

Stump v. Sparkman, 435 U.S. 349, 357-60 (1978).     He has therefore

waived the issue.   See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993).

     Fennell’s appeal is without arguable merit and is thus

frivolous.   See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983).   Because the appeal is frivolous, it is dismissed.     See

5TH CIR. R. 42.2.   The district court’s dismissal of Fennell’s

§ 1983 lawsuit and this court’s dismissal of this appeal count as

two strikes for purposes of 28 U.S.C. § 1915(g).    See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996).   Fennell has

accumulated at least two other strikes.    See Fennell v. Sistrunk,

No. 06-40090 (5th Cir. Aug. 28, 2006) (unpublished).     As he has

at least three strikes under § 1915(g), Fennell is barred from

proceeding 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 Adepegba,

103 F.3d at 388; § 1915(g).

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