IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50343 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERRY WAYNE SALLAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-96-CR-9-1-JN -------------------- August 1, 2000 Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jerry Wayne Sallas, federal prisoner # 68692-080, has filed

an application for leave to proceed in forma pauperis (IFP) on

appeal. Sallas seeks to appeal the district court’s denial of

his motion for grand jury transcripts. Sallas’ freestanding

motion for grand jury transcripts is considered to be a civil

action. United States v. Miramontez,

(5th Cir.

1993). Sallas has not demonstrated that the district court

abused its discretion in denying his motion for the production of

grand jury materials because he has not shown a "particularized

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50343 -2-

need" for the materials that outweighs the policy of secrecy.

Miramontez,

.

Sallas’ appeal presents no legal points arguable on their

merits, and the appeal from the denial of his motion is

frivolous. See Howard v. King,

(5th Cir.

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

5th Cir. Rule 42.2.

Sallas is informed that the dismissal of this appeal as

frivolous counts as a strike for purposes of

(g),

in addition to the strike for the district court’s denial of his

motion for grand jury transcripts as frivolous. See Adepegba v.

Hammons,

(5th Cir. 1996) (“[D]ismissals as

frivolous in the district courts or the court of appeals count

[as strikes] for the purposes of [§ 1915(g)].”). We caution

Sallas that once he accumulates three strikes, he may not proceed

IFP 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

(g).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.