IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40819 Conference Calendar

STEPHAN STROUD,

Plaintiff-Appellant,

versus

VANCE PATTON; KELLY KOCK KOLPAC; SCOTT ELLISON,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-99-CV-505 -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Stephan Stroud, Texas prisoner #745916, appeals from the

dismissal of some of his civil rights claims as frivolous and the

dismissal of his remaining claims without prejudice so that he

may pursue habeas corpus relief on those claims. Stroud argues

in relevant part that the defendants, all private attorneys,

conspired with the prosecutor in his case and that the district

judge should have recused herself in his case.

Stroud provides no specific allegations indicating that any

conspiracy existed. Conclusional allegations of conspiracy do

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40819 -2-

not give rise to federal constitutional claims. Babb v. Dorman,

(5th Cir. 1994). The defendants could not be

liable for any civil rights violation arising from their

representation of Stroud unless they were conspiring with a state

actor. See Cinel v. Connick,

(5th Cir. 1994).

Stroud does not contend that the district court erred by

dismissing his ineffective-assistance and coerced-plea

contentions without prejudice. He has abandoned any such

contention for appeal. In re Mun. Bond Reporting Antitrust

Litig.,

, 439 n.6 (5th Cir. 1982).

Stroud’s allegations regarding the district judge do not

indicate that a reasonable person would question the district

judge’s impartiality. United States v. Bremers,

(5th Cir. 2000). The denial of Stroud’s recusal motion was

not an abuse of discretion.

Stroud’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 this appeal as frivolous counts as a

“strike” for purposes of

(g), as does the

district court’s dismissal of Stroud’s complaint as frivolous.

See Adepegba v. Hammons,

(5th Cir. 1996).

Stroud therefore has two “strikes” under

(g).

Stroud is warned that if he accumulates three “strikes” pursuant

to

(g), he may not proceed in forma pauperis in

any civil action or appeal filed while he is incarcerated or No. 00-40819 -3-

detained in any facility unless he is under imminent danger of

serious physical injury. See

(g).

APPEAL DISMISSED. 5TH CIR. R. 42.2.