IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40320 Conference Calendar

PAUL HAROLD RICE,

Petitioner-Appellant,

versus

DAVID LINE,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 3:00-CV-45 -------------------- December 11, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Paul Harold Rice, Texas prisoner # 900007, appeals the

district court’s dismissal of his

complaint as

frivolous and for failure to state a claim. Rice, however, does

not argue that the district court’s decision was error, and,

instead, he moves this court to treat his

complaint as a

petition. Because he does not

argue that the district court’s decision was error, he has waived

that issue on appeal. See Yohey v. Collins,

(5th Cir. 1993).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40320 -2-

This appeal is without arguable merit and is thus frivolous.

Howard v. King,

(5th Cir. 1983). Because

the appeal is frivolous, it is dismissed. 5th Cir. R. 42.2.

APPEAL DISMISSED; Motion to treat civil rights complaint as

federal habeas petition DENIED.