IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10443 Conference Calendar

LESTER WARNELL FREEMAN,

Plaintiff-Appellant,

versus

TERRI MOORE, Lawyer,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CV-546-D --------------------

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Lester Freeman (Texas prisoner #751150) appeals the district

court’s dismissal of his

civil rights action as

frivolous. In connection with his appeal, Freeman has filed a

motion requesting the appointment of counsel and a motion

requesting the production of a transcript of a hearing conducted

before a grievance committee of the State Bar of Texas.

Freeman’s motions are DENIED.

As the basis for his § 1983 suit, Freeman states that he was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10443 -2-

denied the effective assistance of counsel when his court-

appointed attorney, Terri Moore, failed to file an appellate

brief on his behalf during his direct criminal appeal. Freeman’s

§ 1983 suit lacks an arguable basis in law because Moore was not

acting under color of state law for purposes of § 1983 liability.

See Polk County v. Dodson,

(1981); Mills v.

Criminal Dist. Court No. 3,

(5th Cir. 1988).

The district court did not abuse its discretion in dismissing his

complaint as frivolous. See Siglar v. Hightower,

(5th Cir. 1997). Freeman’s appeal is likewise frivolous and

is therefore DISMISSED. See Howard v. King,

(5th Cir. 1983); 5th Cir. R. 42.2. The dismissal of Freeman’s

complaint as frivolous and the dismissal of this appeal as

frivolous each count as a strike for purposes of

(g). See Adepegba v. Hammons,

(5th

Cir. 1996). We caution Freeman that once he accumulates three

strikes, he may not 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 § 1915(g).

MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) WARNING ISSUED.