IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-11230 Conference Calendar

KENNETH ALAN CROSS,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; CONNIE L. CHRANE; FNNK WIDENER, Officer,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 1:99-CV-28-C -------------------- August 28, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.

PER CURIAM:*

Kenneth Alan Cross, Texas prisoner # 843086, appeals the

dismissal as frivolous of his civil rights action under

. Cross asserts that he was denied access to the courts by

the destruction of a small portion of his trial transcript. We

review the dismissal of a prisoner complaint as frivolous for

abuse of discretion. Talib v. Gilley,

(5th

Cir. 1998).

Cross’s claim fails to rise to the level of a constitutional

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-11230 -2-

violation of his right of access to the courts because he failed

to specifically allege that his position as a litigant was

prejudiced. See Walker v. Navarro County Jail,

(5th Cir. 1993). Cross’s claim of rudeness also fails to state a

constitutional violation. See Bender v. Brumley,

, 274

n.4 (5th Cir. 1993).

Cross's appeal is without arguable merit and is frivolous.

See Howard v. King,

(5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5th Cir.

R. 42.2.

The dismissal of the original complaint as frivolous and the

dismissal of this appeal as frivolous count as two strikes for

purposes of

(g). See Adepegba v. Hammons,

(5th Cir. 1996). We caution Cross that once he

accumulates three strikes, he may not proceed in forma pauperis

(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 § 1915(g).

All outstanding motions denied as moot. APPEAL DISMISSED.