UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-41262 Summary Calendar _____________________

WALTER B. McDONALD,

Plaintiff-Appellant,

versus

PAUL BROWN, Unit Director; L. GELINAS; T. KIDD; B. P. VANDERBUITT, Warden; A. GONZALEZ, Correctional Officer II; CADENA, Mr.; R. VELA; POLANCO, Miss; R. ROSS; DOUG SHAVER, Judge,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (C-96-CV-95) _________________________________________________________________

December 7, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Walter McDonald (Texas prisoner #985878) appeals, pro se, the

dismissal of his § 1983 civil rights claims against four of the

defendants: Gelinas, Kidd, Brown, and Vanderbuitt. He has not

shown error as to those four. The dismissal of the claims against

the other defendants is not contested. (McDonald’s motion for oral

argument is DENIED.)

The claims against Gelinas were dismissed pursuant to 42

U.S.C. § 1997e(e): “No Federal civil action may be brought by a

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. prisoner confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while in custody

without a prior showing of physical injury”. (Emphasis added.)

McDonald’s contention that he is in a substance abuse treatment

program, as opposed to a “prison”, is not determinative. See TEX.

GOV’T CODE ANN. § 509.001(1)(C) (West 1998)(substance abuse treatment

facility operated by or for a corrections department is a

corrections facility).

McDonald also claims that Gelinas was deliberately indifferent

to his medical needs, asserting that she refused to allow him to

leave a group session, despite his showing her a medical pass.

But, because McDonald failed to raise this as a federal claim in

his initial and amended complaints, he cannot raise it for the

first time on appeal. See Kerr v. Lyford,

(5th Cir. 1999).

Having alleged that Kidd, a substance-abuse counselor, had

allowed another inmate to issue him disciplinary “tickets”, one of

which was later dismissed, McDonald maintains that such issuance by

other inmates is a prohibited act; that as a result of the tickets

issued to him and “other facts”, he was given 30 extra days in the

treatment program and eventually discharged from the program and

sentenced to two years in jail. McDonald, however, has not shown

that all of the disciplinary tickets issued to him were reversed,

expunged, or otherwise declared invalid, or that the “other facts”

which contributed to his discharge from the program have been

overturned. Accordingly, he has not shown error. See Clarke v.

2 Stalder,

(5th Cir. 1998) (en banc) (“Claims for

damages and declaratory relief challenging the procedures used in,

but not the results of, prison disciplinary proceedings are

similarly not cognizable in a § 1983 action until the relevant

‘conviction’ has been reversed, expunged, or otherwise declared

invalid....”), cert. denied, ___ U.S. ___,

(1999).

Finally, because McDonald has not shown constitutional rights

violations by either Gelinas or Kidd, he has not shown that either

Brown, the unit director of his substance abuse treatment program,

or Vanderbuitt, the warden of his correctional facility, knowingly

acquiesced in others’ misconduct. Accordingly, he has not shown

error in the dismissal of his claims against them. See Thompkins

v. Belt,

(5th Cir. 1987).

AFFIRMED

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