IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10615 Conference Calendar

CECIL RAY PATTERSON,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; NANCY JOWERS, Mail Room Supervisor,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC 2:99-CV-125 - - - - - - - - - -

December 16, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Texas state prisoner Cecil Ray Patterson, #779579, appeals

the district court’s dismissal of his

complaint

with prejudice under

(e) as frivolous and for

failure to state a claim upon which relief may be granted. He

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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. 99-10615 - 2 -

contends that his constitutional rights were violated when prison

officials refused to permit him to receive certain sexually

explicit publications and that the district court erred in not

giving him notice of its intention to dismiss his suit or an

opportunity to amend his complaint.

We have reviewed the record and Patterson’s brief and

conclude that the district court properly dismissed Patterson’s

complaint as frivolous and for failing to state a claim upon

which relief may be granted. Prison officials can prohibit

sexually explicit material in furtherance of their legitimate

interest in preventing deviate, criminal sexual behavior in the

prison population. Thompson v. Patteson,

, 206-07

& n.1 (5th Cir. 1993). Furthermore, nothing in Patterson’s brief

indicates that a questionnaire or a hearing would have developed

a viable claim. See Eason v. Thaler,

(5th Cir.

1994). Patterson’s appeal is without merit and therefore

frivolous. See Howard v. King,

(5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. See 5TH

CIR. R. 42.2.

The district court’s dismissal of the present case and this

court’s dismissal of Patterson’s appeal count as two “strikes”

against him for purposes of

(g). Patterson had

already accumulated one strike in Patterson v. Guerrero, No.

2:97-CV-036 (N.D. Tex. Aug. 8, 1997). Because he now has three

strikes under the statute, Patterson may not proceed in forma No. 99-10615 - 3 -

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. § 1915(g).

APPEAL DISMISSED. 5th Cir. 42.2. SANCTION IMPOSED UNDER

(g).