IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10686 Conference Calendar

TONY RAY MITCHELL,

Plaintiff-Appellant,

versus

GERALD GARRETT; CRAIG HINES; NICKI WEAVER,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CV-235-A -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Tony Ray Mitchell, Texas prisoner # 488816, appeals the

district court’s dismissal of his

action as

frivolous pursuant to

(e)(2)(B). Mitchell argues

that the district court erred in dismissing his

action as barred by the doctrine of res judicata. Because the

instant action involves the identical parties and the same cause

of action as Mitchell’s prior civil action in Case No. 4:00-CV-

040-Y, and because a final judgment was rendered by a court of

competent jurisdiction in the prior action, the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10686 -2-

did not err in holding that the instant action is barred by the

doctrine of res judicata. See Travelers Ins. Co. v. St. Jude

Hosp. of Kenner, La., Inc.,

(5th Cir. 1994).

Mitchell’s appeal is without arguable merit, and is thus,

frivolous. See Howard v. King,

(5th Cir.

1983). Accordingly, Mitchell’s appeal is DISMISSED. See 5TH CIR.

R. 42.2. Mitchell is advised that the district court’s dismissal

of this action and this court’s dismissal of this appeal both

count as “strikes” for the purposes of

(g). See

Adepegba v. Hammons,

(5th Cir. 1996). Mitchell

is also advised that if he accumulates three strikes, he will be

barred from bringing a civil action or an appeal in forma

pauperis unless he is under imminent danger of serious physical

injury. See

(g). Mitchell is advised to review

any pending pleadings or appeals to ensure that they do not raise

any frivolous claims.

APPEAL DISMISSED; SANCTION WARNING ISSUED.