UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-41262
Summary Calendar
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WALTER B. McDONALD,
Plaintiff-Appellant,
versus
PAUL BROWN, Unit Director; L. GELINAS;
T. KIDD; B. P. VANDERBUITT, Warden;
A. GONZALEZ, Correctional Officer II;
CADENA, Mr.; R. VELA; POLANCO, Miss;
R. ROSS; DOUG SHAVER, Judge,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(C-96-CV-95)
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December 7, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Walter McDonald (Texas prisoner #985878) appeals, pro se, the
dismissal of his § 1983 civil rights claims against four of the
defendants: Gelinas, Kidd, Brown, and Vanderbuitt. He has not
shown error as to those four. The dismissal of the claims against
the other defendants is not contested. (McDonald’s motion for oral
argument is DENIED.)
The claims against Gelinas were dismissed pursuant to 42
U.S.C. § 1997e(e): “No Federal civil action may be brought by a
*
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this opinion should not be published and is not precedent except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.
prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury”. (Emphasis added.)
McDonald’s contention that he is in a substance abuse treatment
program, as opposed to a “prison”, is not determinative. See TEX.
GOV’T CODE ANN. § 509.001(1)(C) (West 1998)(substance abuse treatment
facility operated by or for a corrections department is a
corrections facility).
McDonald also claims that Gelinas was deliberately indifferent
to his medical needs, asserting that she refused to allow him to
leave a group session, despite his showing her a medical pass.
But, because McDonald failed to raise this as a federal claim in
his initial and amended complaints, he cannot raise it for the
first time on appeal. See Kerr v. Lyford, 171 F.3d 330, 338-39
(5th Cir. 1999).
Having alleged that Kidd, a substance-abuse counselor, had
allowed another inmate to issue him disciplinary “tickets”, one of
which was later dismissed, McDonald maintains that such issuance by
other inmates is a prohibited act; that as a result of the tickets
issued to him and “other facts”, he was given 30 extra days in the
treatment program and eventually discharged from the program and
sentenced to two years in jail. McDonald, however, has not shown
that all of the disciplinary tickets issued to him were reversed,
expunged, or otherwise declared invalid, or that the “other facts”
which contributed to his discharge from the program have been
overturned. Accordingly, he has not shown error. See Clarke v.
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Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc) (“Claims for
damages and declaratory relief challenging the procedures used in,
but not the results of, prison disciplinary proceedings are
similarly not cognizable in a § 1983 action until the relevant
‘conviction’ has been reversed, expunged, or otherwise declared
invalid....”), cert. denied, ___ U.S. ___, 119 S. Ct. 1052 (1999).
Finally, because McDonald has not shown constitutional rights
violations by either Gelinas or Kidd, he has not shown that either
Brown, the unit director of his substance abuse treatment program,
or Vanderbuitt, the warden of his correctional facility, knowingly
acquiesced in others’ misconduct. Accordingly, he has not shown
error in the dismissal of his claims against them. See Thompkins
v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
AFFIRMED
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