IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50166 Conference Calendar

SAMUEL FICARO PENA,

Plaintiff-Appellant,

versus

JOSEPH L. BISBEE, ATF Agent; MCALLISTER, ATF Agent; DONNIE A. CARTER, ATF Agent; TIM L. BRIAN, ATF Agent; CHARLES E. WALLACE, ATF Agent; MALCOLM W. BRADY, ATF Agent; JOHN T. PANEZOTT, CCDTF; JOHN DOE, County Sheriff, Columbiana County, Ohio; CATHY GAMBLE, CCDTF; JOHN DOE, Columbiana, Ohio; JOHN DOE, East Liverpool, Ohio; JOHN DOE, East Palestine, Ohio; JOHN DOE, #2, Liverpool, Ohio; JOHN DOE, Salem, Ohio; JOHN DOE, Wellsville, Ohio; RONALD B. BAKEMAN, Assistant U.S. Attorney; SUSAN PRITCHARD; JOHN DOE, #1, IRS, San Antonio; JOHN DOE, #2, IRS, Houston, Texas,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-98-CV-1013-DWS --------------------

August 24, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

Samuel Ficaro Pena, federal prisoner #50360-098, appeals

from the dismissal of his Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics,

(1971), action as 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50166 -2-

barred. Pena requests appointment of counsel; Pena’s request is

DENIED. Pena contends in cursory fashion that his complaint was

not time-barred because the limitations period did not begin to

run until the date of this court’s October 7, 1998, opinion in

Pena v. United States,

(5th Cir. 1998), and that his

complaint was an attempt to amend his pleadings in compliance

with that opinion.

Pena’s complaint in the instant case was time-barred. Pena,

. Pena has filed an amendment in the case that

was remanded by this court and counsel has been appointed to

represent him in that case.

Pena’s appeal is without arguable merit and is frivolous.

Accordingly, the appeal is DISMISSED. 5TH CIR. R. 42.2. The

dismissal of this appeal as frivolous counts as a strike for

purposes of

(g). We caution Pena that once he

accumulates three strikes, he may not proceed in forma pauperis

(IFP) in any civil action or appeal filed while he is in prison

unless he is under imminent danger of serious physical injury.

See

(g).

APPEAL DISMISSED; WARNING ISSUED.