IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40377
Conference Calendar
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WILLIE D. BEASLEY,
Plaintiff-Appellant,
versus
JIMMY ALFORD, Warden, Michael Unit;
TEXAS BOARD OF PARDONS AND PAROLE;
MICHAEL MOORE, Regional Director;
JAMES COLLINS; Michael Unit Medical Dep't,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:94-CV-876
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(October 19, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Willie D. Beasley challenges the magistrate judge's
dismissal of his suit as frivolous. A complaint filed IFP can be
dismissed by the court sua sponte if the complaint is frivolous.
28 U.S.C. § 1915(d). A complaint is "`frivolous where it lacks
an arguable basis either in law or in fact.'" Denton v.
*
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that this opinion should not be published.
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Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams,
490 U.S. 319, 325 (1989)). This court reviews a § 1915(d)
dismissal for abuse of discretion. Denton, 504 U.S. at 33.
Beasley argues that he was wrongly denied protective safe-
keeping status. To establish a failure-to-protect claim under
the Eighth Amendment, a prisoner must show that prison officials
were deliberately indifferent to his need for protection. Wilson
v. Seiter, 501 U.S. 294, 302-03 (1991). A prison official acts
with deliberate indifference under the Eighth Amendment "only if
he knows that inmates face a substantial risk of serious harm and
[he] disregards that risk by failing to take reasonable measures
to abate it." Farmer v. Brennan, 114 S. Ct. 1970, 1984 (1994).
Beasley did not allege any facts tending to show that prison
officials were deliberately indifferent to his safety. His
allegation that he required protection because of his
homosexuality does not establish that he required removal from
the general population. The magistrate judge noted that the
Bureau of Classifications found that Beasley was not entitled to
safe-keeping because Beasley had a history of aggressive sexual
misconduct and was of a large build. Beasley has not challenged
this finding or otherwise shown any facts that would indicate
that he suffered a substantial risk of harm of which prison
officials were aware.
Beasley's allegation that prison guards backed out of the
room while Beasley was being beaten by inmate Wilson suggests
that these corrections officers may have failed to protect
Beasley; nevertheless, Beasley sued the Classification Board, has
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not alleged facts that the Board was aware of any threat posed by
inmate Wilson or any other inmate, and has abandoned any
contentions regarding these guards by not raising them on
appeal.**
Beasley repeats his factual allegations from the court below
regarding the late notice of the unfavorable outcome of his
meeting with the Board of Pardons and Paroles. Under Heck v.
Humphrey, 114 S. Ct. 2364, 2372-73 (1994), a § 1983 plaintiff
must prove that his conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by
an authorized state tribunal, or called into question by a
federal court's issuance of a writ of habeas corpus in order to
recover damages for an allegedly unconstitutional imprisonment.
Id. at 2372. Otherwise, such a claim for damages is not
cognizable under § 1983 and must be dismissed. Id. at 2373. An
action attacking the validity of a parole or probation revocation
proceeding calls into question the fact and duration of
confinement and, thus, must meet the requirements of Heck.
Cotton v. Texas Dep't Criminal Justice, No. 94-10532 (5th Cir.
Aug. 26, 1994) (unpublished) (parole); Jackson v. Vannoy, 49 F.3d
175, 177 (5th Cir.) (probation revocation, citing Cotton), cert.
denied, 64 U.S.L.W. 3243 (U.S. 1995). Thus, Beasley's claims
against the Board of Pardons and Paroles were properly dismissed
by the magistrate judge.
**
Although we liberally construes pro se briefs, see Haines
v. Kerner, 404 U.S. 519, 520 (1972), we require arguments to be
briefed in order to be preserved. Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993). Claims not adequately argued in the
body of the brief are deemed abandoned on appeal. Id. at 224-25.
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Beasley argues that the lack of drinking fountains and the
lack of privacy in the dormitory units violates Ruiz v. Estelle,
503 F. Supp. 1265 (S.D. Tex. 1980), aff'd in part and vacated in
part, 679 F.2d 1115, amended in part and vacated in part, 688
F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983).
Violations of the Ruiz decree, without more, are not cognizable
in a § 1983 cause of action. Green v. McKaskle, 788 F.2d 1116,
1122 (5th Cir. 1986).
Finally, Beasley alleges that, on August 19, 1994, he
complained of congestion and wheezing due to asthma to the shift
supervisor, Sergeant English, that English reported the condition
to the medical department, and that the medical department
reported that Beasley had no asthma problems in his records.
This factual scenario is presented for the first time on appeal.
"[I]ssues raised for the first time on appeal are not reviewable
by this court unless they involve purely legal questions and
failure to consider them would result in manifest injustice."
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (internal
quotations and citation omitted). These issues involve factual
questions that were not addressed by the magistrate judge;
therefore, they are not subject to review for the first time on
appeal. Beasley's other allegations below regarding his medical
treatment are abandoned as they have not been brought before the
court.
Beasley has not shown that the dismissal for frivolousness
was an abuse of discretion. See 28 U.S.C. § 1915(d); Booker v.
Koonce 2 F.3d 114, 115 (5th Cir. 1993). Beasley's contentions on
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appeal are wholly without merit, rendering the appeal frivolous.
See Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988). This
appeal is DISMISSED. See 5TH CIR. R. 42.2.