IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41072 Conference Calendar

WILLIAM EARL CUNNINGHAM,

Plaintiff-Appellant,

versus

JEFFREY GUNNELS, CORRECTIONAL OFFICER III Officer, Eastham Unit of the Texas Department of Criminal Justice; BLAKELY MUSTON, CORRECTIONAL OFFICER III Officer, Eastham Unit of the Texas Department of Criminal Justice; CHARLES MARTIN, Warden, In his official capacity as warden at Eastham Unit of the Texas Department of Criminal Justice; KENNETH SULEWSKI, In his official capacity as captain, Eastham Unit of the Texas Department of Criminal Justice; SHIRLEY B. WYATT, In his official capacity as Disciplinary Captain, Eastham Unit of the Texas Department of Criminal Justice,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:94-CV-203 --------------------

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

William Earl Cunningham, Texas prisoner #643591, appeals

from the dismissal of his civil rights action following a jury

trial. Cunningham moves for the preparation of the trial

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-41072 -2-

transcript at government expense and for oral argument.

Cunningham’s transcript and oral argument motions are DENIED.

The appellees move for the dismissal of Cunningham’s appeal; for

the reasons that follow, the appellees motion is GRANTED.

Cunningham contends that the magistrate judge erred by

denying his discovery motions; that the magistrate judge erred by

denying his motion for a default judgment; that he was deprived

of access to the courts by limitations on his law-library access;

that the magistrate judge erred by denying his motions for

appointment of counsel; that the appellees inflicted cruel and

unusual punishment; that the district court erred by denying

various motions for restraining orders; that the magistrate judge

erred by denying his requests for medical witnesses; that most

jurors at his trial were prison system employees; that the

appellees deprived him of a fair trial; and that the magistrate

judge deprived him of a fair trial. With the exception of the

issues discussed below, Cunningham has failed to brief his issues

for appeal. Brinkmann v. Dallas County Deputy Sheriff Abner,

(5th Cir. 1987).

Cunningham has failed to show prejudice resulting from the

denial of his discovery motions. Marshall v. Norwood,

(5th Cir. 1984). No default judgment against the

appellees would have been appropriate for their alleged failure

to comply with discovery orders. FED. R. CIV. P. 55(a).

Cunningham has failed to show that he was deprived of the

ability to prepare and transmit necessary documents to the court

due to the limitations on his law library access. He has failed No. 97-41072 -3-

to show a deprivation of his right of access to the courts.

Brewer v. Wilkinson,

(5th Cir. 1993).

Cunningham does not indicate why he needed counsel’s guiding

hand to assist in questioning witnesses or instructing the jury;

Cunningham asserts those reasons for appointment of counsel for

the first time on appeal. He has failed to show plain error

regarding the denial of his motions for appointment of counsel.

Highlands Ins. Co. v. National Union Fire Ins. Co.,

(5th Cir. 1994).

Cunningham’s appeal is without arguable merit and is

frivolous. The dismissal of Cunningham’s appeal as frivolous

counts as a strike pursuant to

(g). We are aware

that Cunningham already is barred by § 1915(g) from proceeding in

forma pauperis (IFP) unless he is under imminent danger of

serious physical injury. Cunningham v. Heuszel, No. 97-40931

(5th Cir. Aug. 20, 1998)(unpublished). Because Cunningham filed

the notice of appeal in the instant case before he achieved

three-strike status, the bar of § 1915(g) does not affect the

instant appeal.

APPEAL DISMISSED AS FRIVOLOUS. 5TH CIR. R. 42.2.