Amos FENNELL, Plaintiff-Appellant, v. SCHWEITZER, Judge; Kirk Sistrunk, District Attorney; Roy Quintanilla, Judge, Defendants-Appellees, 202 F. App'x 794

PER CURIAM: Amos Fennell, Texas prisoner # 146234, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2). We review a dismissal for failure to state a claim de novo and we review a dismissal as frivolous for abuse of discretion. Morin v. Moore, 309 F.3d 316, 319 (5th Cir.2002); Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999). Fennell claims that he was retried on a case that had previously been dismissed by Judge Schweitzer. He asserts that Judge Schweitzer made false statements and falsified state documents.

Fennel does not address the district court’s determination that Judge Schweitzer is entitled to judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 357-60, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). He has therefore waived the issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Fennell’s appeal is without arguable merit and is thus frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is fiivolous, it is dismissed. See 5th Cir. R. 42.2.

The district court’s dismissal of Fennell’s § 1983 lawsuit and this court’s dismissal of this appeal count as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). Fennell has accumulated at least two other strikes. See Fennell v. Sistrunk, 198 Fed.Appx. 380 (5th Cir.2006) (unpublished). As he has at least three strikes under § 1915(g), Fennell is barred from proceeding in forma pauperis 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 Adepegba, 103 F.3d at 388; § 1915(g). APPEAL DISMISSED; 28 U.S.C. § 1915(

g) BAR IMPOSED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.