IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20273 Conference Calendar

ANZETTA SMITH,

Plaintiff-Appellant,

versus

MIKE SCHWARTZ; JAMES SEEMAN; WILLIAM HATTEN,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-4323 -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Anzetta Smith, Texas prisoner No. 529054, seeks leave to

proceed in forma pauperis (“IFP”) on appeal. The district court

denied Smith’s FED. R. CIV. P. 60(b) motion for relief from the

dismissal of his

complaint as frivolous. The

court denied Smith’s motion to appeal IFP and certified that the

appeal was not taken in good faith. By moving for IFP, Smith is

challenging the district court’s certification. See Baugh v.

Taylor,

(5th Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20273 -2-

In his Rule 60(b) motion, Smith sought to reopen the

judgment in order to amend the complaint to sue new defendants

based on an entirely new theory of recovery. Smith has failed to

show that the district court abused its discretion by denying the

motion to amend. Seven Elves, Inc. v. Eskenazi,

(5th Cir. 1981). The instant appeal is without arguable

merit and is thus frivolous. Accordingly, it is DISMISSED.

Howard v. King,

(5th Cir. 1983); 5TH CIR. R.

42.2.

The district court’s dismissal of the complaint as frivolous

and this court’s dismissal of the appeal count as two “strikes”

for purposes of

(g). See Adepegba v. Hammons,

(5th Cir. 1996). Smith is CAUTIONED that if

he accumulates one more “strike” under

(g), he

will not be able to 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; IFP MOTION DENIED; THREE-STRIKES WARNING

ISSUED.