Summary Calendar JEFFERY WARREN SANDERS v. DONNA KLINGER, Sergeant

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 9, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41706
Summary Calendar
JEFFERY WARREN SANDERS
Plaintiff - Appellant
v.
DONNA KLINGER, Sergeant; MIKE NELSON,
Deputy; MARK RIDEAUX; NFN DELACRUZ,
Deputy Lieutenant; JOHN G. ANDERSON
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-01-CV-141
--------------------
Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES,
Circuit Judges.
PER CURIAM:*
Jeffery Warren Sanders, Texas prisoner # 680206, appeals the
dismissal as frivolous of his pro se, in forma pauperis
complaint. He asserts that Donna Klinger opened his legal mail
outside of his presence, in violation of prison rules and his
constitutional rights. Such allegations are insufficient to

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No. 03-41706
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establish a claim of a denial of access to the courts. Myers v.
Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996); Brewer v. Wilkinson,
3 F.3d 816, 826 (5th Cir. 1993).
Sanders also asserts that the Galveston County Jail’s law
library contained outdated materials and that he lacked the time
to research his claims adequately. He has not established a
denial of access to the courts because he has not shown that his
position as a litigant was prejudiced. Lewis v. Casey, 518 U.S.
343, 350-53 (1996).
Sanders’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we DISMISS Sanders’s appeal as frivolous.
See 5TH CIR. R. 42.2. This dismissal of his appeal as frivolous
and the district court’s dismissal of his complaint as frivolous
constitute two “strikes” for the purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). If
Sanders obtains three “strikes,” he will not be able to proceed
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 28 U.S.C.
§ 1915(g).
Sanders has moved for correction and modification of the
record on appeal and for appointment of counsel. These motions
are DENIED.
APPEAL DISMISSED; MOTIONS DENIED.

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