IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50596
Conference Calendar
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KENNETH RAY SIMS,
Plaintiff-Appellant,
versus
JOHNNY SMITH, Captain, Hughes Unit;
DAVID K. VANDIVER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-94-CV-112
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(October 18, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that Kenneth Ray Sims's motion for leave to
proceed in forma pauperis is DENIED. Sims has not shown that he
will present a nonfrivolous issue on appeal. Carson v. Polley,
689 F.2d 562, 586 (5th Cir. 1982). Because the appeal is
frivolous, it is DISMISSED. See 5th Cir. R. 42.2.
Sims alleged that Captain Smith hit him without
provocation, but the defendants presented Sims's disciplinary
record in which he pleaded guilty to hitting the officers, and
the judgment from his criminal proceeding in which Sims was found
*
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that this opinion should not be published.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. 95-50596
-2-
guilty of two counts of aggravated assault of a correctional
officer. Sims has not refuted this evidence which establishes
that the use of force was applied "in a good faith effort to
maintain or restore discipline," rather than "maliciously and
sadistically to cause harm." Rankin v. Klevenhagen, 5 F.3d 103,
107 (5th Cir. 1993).
This court does not have jurisdiction to review the order
denying the motion for appointment of counsel because the
magistrate judge denied the motion and Sims did not appeal to the
district court. Colburn v. Bunge Towing, Inc., 883 F.2d 372, 379
(5th Cir. 1989).
For the first time on appeal, Sims alleges that he was
questioned about the excessive force incident in violation of his
Fifth Amendment rights and that he was denied access to the
courts. This court need not address issues not considered by the
district court. "[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).
Appeal DISMISSED. Motion for injunctive relief DENIED. See
Greene v. Fair, 314 F.2d 200, 201 (5th Cir. 1963).