IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40166
Conference Calendar
WILLIAM EARL CUNNINGHAM,
Plaintiff-Appellant,
versus
CINO DE LA VAGA ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:96-CV-386
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October 31, 1997
Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
William Earl Cunningham, Texas prisoner #643591, appeals
from the dismissal of his civil rights action as frivolous.
Cunningham contends that the defendants were deliberately
indifferent to his safety; that the defendants deprived him of
the right to an investigation of attacks against him; and that
the defendants conspired to cover up the attacks against him by
failing to investigate them.
Cunningham failed to object to the magistrate judge’s report
*
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that this opinion should not be published and is not precedent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. 97-40166
-2-
and the district court did not review his claims de novo. We
therefore review Cunningham’s appellate contentions for plain
error. Douglass v. United Servs. Auto. Assn., 79 F.3d 1415,
1428-29 (5th Cir. 1996)(en banc).
Cunningham alleges for the first time on appeal that
excessive force was used against him in July 1994 and July 1996.
Whether force was used against Cunningham on those dates is a
factual issue; Cunningham cannot show plain error because the
district court did not consider that factual issue or any legal
contentions related to it. Robertson v. Plano City of Texas, 70
F.3d 21, 23 (5th Cir. 1995).
It was not plainly erroneous for the district court not to
consider Cunningham’s contention that the defendants were
deliberately indifferent to his safety regarding an attack by
inmate John Kirven. Cunningham alleged no facts in his complaint
that gave rise to any inference of deliberate indifference. See
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
Regarding Cunningham’s contention that the defendants
deprived him of the right to have the attack by Kirven
investigated, we find the contention frivolous for essentially
the same reasons relied upon by the district court. Cunningham
v. de la Vaga, No. 9:96-CV-386 (E.D. Tex. Oct. 16, 1996).
Regarding Cunningham’s contention that the defendants conspired
to cover up the attack by Kirven, Cunningham has not shown that
the defendants violated any constitutionally protected right.
No. 97-40166
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Farrar v. Cain, 756 F.2d 1148, 1151 (5th Cir. 1988).
Cunningham’s appeal is frivolous and therefore is dismissed.
APPEAL DISMISSED. 5TH CIR. R. 42.2.