No. 99-20601 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20601 Summary Calendar

OSCAR L. SHAW,

Plaintiff-Appellant,

versus

FERNANDO E. FIGUEROA; LINDBERG ARNOLD, JR.; CRAIG B. PRICE; JESSE FRANKLIN; CANDY L. COLLINS; KIRBY G. POWLEDGE; DAVID LE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CV-1958 -------------------- February 28, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Oscar L. Shaw appeals the district court’s dismissal of his

civil rights action as frivolous pursuant to

(e)(2)(B)(i). He argues that the district court

abused its discretion in dismissing as frivolous his claim that

he was denied adequate medical care for injuries caused by the

defendants’ use of pepper spray near his cell and by an

electronic cell door closing on his upper right side. Because

the record indicates that Shaw received medical treatment after

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-20601 -2-

his exposure to pepper spray and he acknowledges in his complaint

that he received medical treatment for his injuries caused by the

electronic cell door, he has not shown that the district court

abused its discretion in dismissing this claim as frivolous

pursuant to § 1915(e)(2)(B)(i). See Varnado v. Lynaugh,

(5th Cir. 1991).

Shaw argued for the first time on appeal that he was denied

adequate medical care for his glaucoma. Shaw may not raise these

factual issues for the first time on appeal. See Diaz v.

Collins,

(5th Cir. 1997)(holding that unless an

issue raised for the first time on appeal involves a purely legal

question and the failure to consider it would result in manifest

injustice, it is not reviewable by this court); Williams v. Cigna

Fin. Advisors, Inc.,

(5th Cir. 1995)(refusing to

consider factual issue raised for the first time on appeal).

However, according to Shaw’s own statements and Dr. Largent’s

statements at the Spears** hearing, Shaw has received extensive

treatment for his glaucoma, including at least two surgeries,

regular examinations from 1996 to 1999, and three prescriptions

eye drops for his glaucoma.

Shaw also argues that the defendant, Candy Collins,

deliberately closed the electronic door on him. Shaw’s

allegations indicate that Collins acted negligently in failing to

wait until the other guard told him that the doorway was clear

before closing the cell door. Such negligence does not state a

claim for a constitutional violation which is cognizable under

** Spears v. McCotter,

(5th Cir. 1985). No. 99-20601 -3-

§ 1983. Leffall v. Dallas Independent School Dist.,

(5th Cir. 1994); Salas v. Carpenter,

(5th Cir. 1992)(allegations of negligent conduct do not implicate

the Constitution).

Shaw alleges that the other defendants knew or should have

known that the electronic doors posed a danger to handicapped

inmates based on his grievances but failed to correct the

problem. Shaw’s grievance stated generally that handicapped

inmates are not given enough time to go through the electronic

doors, but did not state that he or any other inmates were caught

or injured by electronic cell doors. Because Shaw’s grievance

did not expressly put the other defendants on notice of a

specific safety hazard, Shaw has not shown that they were aware

of a safety risk but failed to take reasonable measures to abate

it. See Farmer v. Brennan,

(1994).

Shaw argues that the district court abused its discretion in

dismissing as frivolous his claim that the defendants failed to

protect him from attacks by other inmates. Shaw acknowledged

that he had not previously had any trouble with the inmates who

attacked him. He does not allege that he had been threatened,

that he had any prior warning of the attacks, or that he advised

the defendants that he was in danger of attack from a specific

individual prior to these attacks. Shaw did not show that the

defendants had actual knowledge that Shaw faced a substantial

risk of serious harm from a particular inmate and that the

defendants failed to take reasonable measures to protect him from No. 99-20601 -4-

that risk. See Neals v. Norwood,

(5th Cir.

1995); Jacquez v. Procunier,

(5th Cir. 1986).

Shaw argues that the district court erred in dismissing his

action without allowing him to amend his complaint to raise a

claim that the defendants violated the Americans with

Disabilities Act (ADA). Shaw had the right to amend his

complaint once before the service of a responsive pleading. See

Fed. R. Civ. P. 15(a). The district court abused its discretion

in denying Shaw’s motion to amend his complaint. See Aguilar v.

Texas Dep’t of Criminal Justice,

, 1053 (5th Cir.

1998), cert. denied,

(1999). The district court’s

judgment is VACATED in part, and the case should be REMANDED to

allow Shaw to amend his complaint.

For the first time on appeal, Shaw argues that the

defendants failed to provide him with adequate housing in

violation of the ADA and that the defendants’ deliberate use of

pepper spray constituted cruel and unusual punishment. Shaw may

not raise these factual issues for the first time on appeal. See

Diaz,

; Williams,

.

Shaw’s appeal does not present exceptional circumstances

requiring appointment of counsel. See Cooper v. Sheriff, Lubbock

County, Tex.,

(5th Cir. 1991). Therefore,

Shaw’s motion for appointment of counsel is DENIED.

AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION FOR

APPOINTMENT OF COUNSEL DENIED.