IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40751 Conference Calendar

DALE ALAN CURTIS,

Plaintiff-Appellant,

versus

TIMOTHY WEST, Senior Warden, Mark Stiles Unit; EDDIE WILLIAMS, Assistant Warden, Mark Stiles Unit; TOMMY BROWN, Correctional Officer III, Mark Stiles Unit; JIMMY BINGHAM, Correctional Officer III, Mark Stiles Unit; DAVID BRUNET, Correctional Officer III, Mark Stiles Unit; MATTHEW ELLIS, Correctional Officer III, Mark Stiles Unit; CLINT GILBERT, Correctional Officer III, Mark Stiles Unit; MARK HANLEY, Sergeant, Mark Stiles Unit; STEPHANIE LEJUNE, Correctional Officer III, Mark Stiles Unit; THOMAS MCKEE, Lieutenant, Mark Stiles Unit; TOBY POWELL, Correctional Officer III, Mark Stiles Unit; RICKEY TARVER, Correctional Officer III, Mark Stiles Unit; ANNA TOMBLIN, Sergeant, Mark Stiles Unit; TAURA WARE, Correctional Officer III, Mark Stiles Unit,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:97-CV-579 - - - - - - - - - - April 10, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Dale A. Curtis, Texas prisoner # 644162, appeals the

district court’s dismissal of his

complaint for

failure to state a claim and as frivolous pursuant to 28 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40751 -2-

§ 1915. He argues that he was summarily disciplined by denying

him a meal for failing to groom or to wear proper shoes in

violation of the Due Process Clause and that the mental state of

the district court judge was inadequate because he was suffering

from cancer and died soon after issuing the instant judgment.

The district court shall dismiss a prisoner’s in forma

pauperis (IFP) civil rights complaint if the court determines

that the action is frivolous or fails to state a claim upon which

relief may be granted. Black v. Warren,

(5th

Cir. 1998); see U.S.C. § 1915(e)(2)(B)(i) & (ii), respectively.

Curtis’ allegations of missed meals and improper disciplinary

action fail to rise to the level of an Eighth Amendment violation

and do not implicate a liberty interest. Berry v. Brady,

(5th Cir. 1999). His 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

and the dismissal for failure to state a claim by the district

court each count as a “strike” for purposes of

(g). See Adepegba v. Hammons,

(5th

Cir. 1996). Curtis, therefore, has two “strikes” under

(g). We caution Curtis 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).

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.