IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-60668
Conference Calendar
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BILLY RAY JOHNSON,
Plaintiff-Appellant,
versus
R. GARCIA, Warden,
Texas Department of Criminal Justice,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 93-CV-423, C.A. C-94-71
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August 22, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
The district court did not abuse its discretion by
dismissing as frivolous Texas prisoner Billy Ray Johnson's civil
rights complaint challenging Warden R. Garcia's failure
immediately to remove Johnson from close custody after Johnson's
disciplinary convictions were reversed on appeal. Sandin v.
Conner, 115 S. Ct. 2293, 2300 (1995); Ancar v. Sara Plasma, Inc.,
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 94-60668
-2-
964 F.2d 465, 468 (5th Cir. 1992). To the extent that Johnson
suggests that Warden Garcia was not timely informed that
Johnson's disciplinary convictions had been overturned, his claim
is not actionable under 42 U.S.C. § 1983. Moody v. Baker, 857
F.2d 256, 258 (5th Cir.), cert. denied, 488 U.S. 985 (1988).
Because the facts alleged in Johnson's complaint and
testimony at a Spears** hearing do not support his claim of a
constitutional violation, the district court did not abuse its
discretion by dismissing the complaint without further
investigation. Ancar, 964 F.2d at 468.
This court declines to consider Johnson's arguments
concerning a July 15, 1993, disciplinary hearing because he did
not raise them in the district court. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).
Johnson's motion for appointment of appellate counsel is
DENIED. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
AFFIRMED.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).