United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 14, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-20694
                          Summary Calendar



JUAN ANTONIO VELASQUEZ,

                                    Plaintiff-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION; TEXAS CHAIRMAN-TEXAS BOARD OF PARDONS &
PAROLES; TEXAS BOARD OF PARDONS AND PAROLES,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:05-CV-2210
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Juan Antonio Velasquez, Texas prisoner # 1055310, appeals

the dismissal of his 42 U.S.C. § 1983 suit for failure to state a

claim and as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B).

Velasquez asserts that the district court was wrong to dismiss

his § 1983 complaint pursuant to § 1915(e) because he had not

sought leave to proceed in forma pauperis (IFP).   Although


     *
       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this opinion should not be published and is not precedent except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. 05-20694
                                -2-

Velasquez had not moved to proceed IFP in the district court, the

magistrate judge ordered that the filing fee for his § 1983

complaint be paid in installments, and, thus, the magistrate

judge effectively granted Velasquez IFP status with respect to

his § 1983 suit.   Moreover, any misapplication of § 1915(e)(2)(B)

was harmless given the existence of an alternative frivolity

provision applicable to fee-paid complaints.   See § 1915A(b)(1).

     Velasquez also argues that the district court erred in

ruling on the claim raised in his § 1983 suit because the claim

was pending first in another court via a 28 U.S.C. § 2254

petition.   Velasquez has not shown that there was any motion

pending in the instant case which would have prevented the

district court from ruling on his § 1983 complaint.   He offers no

other argument to challenge the district court’s dismissal of his

§ 1983 suit as malicious and for failure to state a claim.

Accordingly, Velasquez’s appeal is without arguable merit and is

dismissed as frivolous.   See 5TH CIR. R. 42.2; Howard v. King, 

, 219-20 (5th Cir. 1983).

     Velasquez is advised that the dismissal of this appeal as

frivolous and the district court’s dismissal of his § 1983 suit

each count as strikes for purposes of § 1915(g) and that if he

accumulates three strikes, 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
                           No. 05-20694
                                -3-

serious physical injury.   See Adepegba v. Hammons, 

,

388 (5th Cir. 1996); § 1915(g).

     APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.