UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40757
Summary Calendar
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MIGUEL RIOS, III,
Plaintiff - Appellant,
versus
JAMES T. HICKEY, Sheriff of Nueces County, Texas;
ROBERT BARNES, County Judge,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(C-94-CV-99)
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March 22, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Miguel Rios, III, pro se and in forma pauperis, appeals the
dismissal of his 42 U.S.C. § 1983 action. We AFFIRM.
I.
Rios claimed that the defendants, while holding Rios in
protective custody, negligently failed to protect him from injury
by inmate gang members. He claimed also that he was injured due to
the negligence of the defendants in failing to protect him from
another such incident during his incarceration two years later.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Citing both FED. R. CIV. P. 41(b) and 28 U.S.C. § 1915(d), the
district court dismissed the action with prejudice.1
II.
A.
We review § 1915(d) dismissals for abuse of discretion. E.g.,
Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).
In the district court, Rios failed to allege any conduct by
the defendants rising above mere negligence. See, e.g., Daniels v.
Williams, 474 U.S. 327 (1986) (due process clause not implicated by
negligent acts of state officials). Moreover, he failed to allege
any personal involvement by the presently named defendants. See
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.) (holding personal
involvement to be essential element of civil rights action), cert.
denied, 464 U.S. 897 (1983). Finally, Rios failed to allege a
policy or custom on the part of the county. Colle v. Brazos
County, Texas, 981 F.2d 237, 244 (5th Cir. 1993). In sum, Rios'
claim of constitutional injury lacks any basis in law. Booker v.
Koonce, 2 F.3d at 115.2
1
Rios failed to comply with the district court's January 10,
1995, order requiring him to file an amended complaint by February
6, 1995. His eventual response was four months late.
Although the district court cited Rule 41(b) as a basis for
its dismissal, on appeal Rios failed to address the issue of
dismissal for failure to prosecute. The issue is waived. Brinkman
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (if appellant fails to address issue in brief, issue deemed
abandoned). In any event, we address § 1915(d).
2
Rios asserts also that the district court abused its
discretion by refusing to acknowledge Rios' request that service of
process be made. Rios refers to letters that are not in the
record. Similarly, the motion for service of process attached to
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B.
Rios asserts that the district court abused its discretion in
dismissing the complaint without allowing him to conduct discovery.
He attached to his appellate brief proposed discovery requests
which would address, for the first time on appeal, a different
factual basis for his claim, namely that the defendants acted
deliberately, rather than negligently.
Because Rios was given ample opportunity to develop the
factual basis of his claim in district court, he is not entitled to
further discovery or to amend his complaint now. See Macias v.
Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 98 n.5 (5th Cir.),
cert. denied, __ U.S.__, 115 S. Ct. 220 (1994). Rios' claims in
the district court were limited to allegations of negligence. In
reviewing the district court's dismissal, our court is "not free to
speculate that the plaintiff `might' be able to state a claim if
given yet another opportunity to add more facts to the complaint".
Macias, 23 F.3d at 97.3
Rios' brief was never filed in the district court.
Even if the request for service of process had been made
properly, the district court would have acted within its discretion
in dismissing the suit as frivolous before incurring the cost of
serving process on the defendants, the court having found the
claims to be frivolous. See Spears v. McCotter, 766 F.2d 179, 181
(5th Cir. 1985) (holding that pro se defendants may be required to
provide more definite statement of substance of claim before
service of process is required).
3
Because we affirm the dismissal of Rios's action, we also DENY
as moot his motion to appoint counsel.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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