No. 99-20601
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20601
Summary Calendar
OSCAR L. SHAW,
Plaintiff-Appellant,
versus
FERNANDO E. FIGUEROA; LINDBERG ARNOLD, JR.;
CRAIG B. PRICE; JESSE FRANKLIN; CANDY L.
COLLINS; KIRBY G. POWLEDGE; DAVID LE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1958
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February 28, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Oscar L. Shaw appeals the district court’s dismissal of his
42 U.S.C. § 1983 civil rights action as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). He argues that the district court
abused its discretion in dismissing as frivolous his claim that
he was denied adequate medical care for injuries caused by the
defendants’ use of pepper spray near his cell and by an
electronic cell door closing on his upper right side. Because
the record indicates that Shaw received medical treatment after
*
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that this opinion should not be published and is not precedent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.
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his exposure to pepper spray and he acknowledges in his complaint
that he received medical treatment for his injuries caused by the
electronic cell door, he has not shown that the district court
abused its discretion in dismissing this claim as frivolous
pursuant to § 1915(e)(2)(B)(i). See Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991).
Shaw argued for the first time on appeal that he was denied
adequate medical care for his glaucoma. Shaw may not raise these
factual issues for the first time on appeal. See Diaz v.
Collins, 114 F.3d 69, 71 (5th Cir. 1997)(holding that unless an
issue raised for the first time on appeal involves a purely legal
question and the failure to consider it would result in manifest
injustice, it is not reviewable by this court); Williams v. Cigna
Fin. Advisors, Inc., 56 F.3d 656, 661 (5th Cir. 1995)(refusing to
consider factual issue raised for the first time on appeal).
However, according to Shaw’s own statements and Dr. Largent’s
statements at the Spears** hearing, Shaw has received extensive
treatment for his glaucoma, including at least two surgeries,
regular examinations from 1996 to 1999, and three prescriptions
eye drops for his glaucoma.
Shaw also argues that the defendant, Candy Collins,
deliberately closed the electronic door on him. Shaw’s
allegations indicate that Collins acted negligently in failing to
wait until the other guard told him that the doorway was clear
before closing the cell door. Such negligence does not state a
claim for a constitutional violation which is cognizable under
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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§ 1983. Leffall v. Dallas Independent School Dist., 28 F.3d 521,
525 (5th Cir. 1994); Salas v. Carpenter, 980 F.2d 299, 306-07
(5th Cir. 1992)(allegations of negligent conduct do not implicate
the Constitution).
Shaw alleges that the other defendants knew or should have
known that the electronic doors posed a danger to handicapped
inmates based on his grievances but failed to correct the
problem. Shaw’s grievance stated generally that handicapped
inmates are not given enough time to go through the electronic
doors, but did not state that he or any other inmates were caught
or injured by electronic cell doors. Because Shaw’s grievance
did not expressly put the other defendants on notice of a
specific safety hazard, Shaw has not shown that they were aware
of a safety risk but failed to take reasonable measures to abate
it. See Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Shaw argues that the district court abused its discretion in
dismissing as frivolous his claim that the defendants failed to
protect him from attacks by other inmates. Shaw acknowledged
that he had not previously had any trouble with the inmates who
attacked him. He does not allege that he had been threatened,
that he had any prior warning of the attacks, or that he advised
the defendants that he was in danger of attack from a specific
individual prior to these attacks. Shaw did not show that the
defendants had actual knowledge that Shaw faced a substantial
risk of serious harm from a particular inmate and that the
defendants failed to take reasonable measures to protect him from
No. 99-20601
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that risk. See Neals v. Norwood, 59 F.3d 530, 533 (5th Cir.
1995); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986).
Shaw argues that the district court erred in dismissing his
action without allowing him to amend his complaint to raise a
claim that the defendants violated the Americans with
Disabilities Act (ADA). Shaw had the right to amend his
complaint once before the service of a responsive pleading. See
Fed. R. Civ. P. 15(a). The district court abused its discretion
in denying Shaw’s motion to amend his complaint. See Aguilar v.
Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1053 (5th Cir.
1998), cert. denied, 120 S. Ct. 130 (1999). The district court’s
judgment is VACATED in part, and the case should be REMANDED to
allow Shaw to amend his complaint.
For the first time on appeal, Shaw argues that the
defendants failed to provide him with adequate housing in
violation of the ADA and that the defendants’ deliberate use of
pepper spray constituted cruel and unusual punishment. Shaw may
not raise these factual issues for the first time on appeal. See
Diaz, 114 F.3d at 71; Williams, 56 F.3d at 661.
Shaw’s appeal does not present exceptional circumstances
requiring appointment of counsel. See Cooper v. Sheriff, Lubbock
County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991). Therefore,
Shaw’s motion for appointment of counsel is DENIED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.