* Pursuant to Local Rule 47.5, the Court has deter mined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-40226

Summary Calendar

STEVEN EDWARD MAYFIELD,

Plaintiff-Appellant,

versus

JACK A. ELLETT, Sheriff, Panola County,

Defendant-Appellee.

________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

(6:95-CV-246)

________________________________________________

October 29, 1996

Before GARWOOD, JOLLY and DENNIS, Circuit Judges. *

GARWOOD, Circuit Judge:

Plaintiff-appellant Steven Edward Mayfield (Mayfield), a

former inmate of the Panola County Jail (jail) now confined by the

Texas Department of Criminal Justice (TDCJ) at the Boyd Unit in

Teague, Texas, proceeding pro se and in forma pauperis

, filed this

civil rights action under 42 U.S.C. § 1983 complaining of alleged

constitutional violations during his confinement in the jail. The2

only named defendant in Mayfield’s action was Jack Ellett, the

sheriff of Panola County, Texas. Mayfield asserted various claims

regarding improper medical treatment, inadequate dietary

accommodations, improper cell lighting, and inadequate outdoor

recreation. Mayfield’s action was referred to a magistrate judge

who conducted an evidentiary hearing. At the evidentiary hearing,

both the treati ng physician and Panola County’s chief deputy in

charge of the jail testified regarding Mayfield’s claims. Mayfield

cross-examined each witness. The parties consented to jurisdiction

by the magistrate judge. After the hearing, but before final

judgment was entered, the Panola County chief deputy jailor served

Mayfield with an arrest warrant for perjury. Upon consideration of

the pleadings and the evidence presented at the hea ring, the

magistrate judge dismissed with p rejudice Mayfield’s claims as

frivolous. Mayfield sent a letter to the district court

complaining about the perjury charge and requesting an injunction

of the state court perjury prosecution. Before the magistrate

judge ruled on the injunction, Mayfield filed his notice of appeal

of the earlier dismissal. The magistrate judge subsequently denied

Mayfield’s request for an injunction. For the following reasons we

affirm the magistrate judge’s dismissal of Mayfield’s civil rights

action.

Facts and Proceedings Below

On March 19, 1995, Texas Department of Public Safety (DPS)3

officers stopped the motor home in which Mayfield was traveling for

a traffic violation. Mayfield was arrested after the DPS officers

and a deputy sheriff from Panola County found marihuana inside the

motor home. According to Mayfield, police officers at the scene

would not permit him to retrieve his specta cles, clothes, or

hypertension medication which were inside a bag in the motor home.

Mayfield testified that the two medications left in the motor home

were Procardia (t wenty milligram capsules) and Inderal (eighty

milligram capsules). The officers brought Mayfield to the Panola

County Jail in Carthage, Texas.

Mayfield contends that at the jail he informed the booking

officers of the medication he was ta king for hypertension and

tuberculosis. Mayfield further contends that, in addition to the

information he supplied to the booking officer regarding his need

for medication and his medical condition, he made requests for

medication to both John de Presca (de Presca), the chief deputy in

charge of the jail, and the floor deputies. Mayfield also asserts

that he placed phone calls to various citizens of Carthage

requesting that they call the jail on his behalf. Although

contradicted by de Presca, Mayfield claims that he requested to see

a physician virtually every day until March 28, 1995, when he was

finally taken to the Panola County Hospital.

At the Panola County Hospital, Mayfield provided additional

medical information to a receptionist and an attending nurse.

Mayfield’s temperature was taken and he received an4

electrocardiogram (EKG) test. The treating physician was Dr. Gary

Wynn Swink (Swink). Dr. Swink testified that he prescribed Inderal

and Adalat CC for Mayfield’s heart problems and INH (Isoniazid) for

Mayfield’s t uberculosis. Dr. Swink testified that Adalat CC is

identical to Procardia and is not a generic form; rather, according

to Dr. Swink, Adalat is simply Procardia produced by a different

company

—— in both cases the generic drug is nifedipine. Dr. Swink

also testified that, although he pres cribed Inderal, he gave the

pharmacy permission to substitute a generic form, Propanoil, which

was actually given to Mayfield. According to Mayfield, he informed

Dr. Swink that he had had prior reactions to different forms of

Procardia and requested the capsule form. Dr. Swink told Mayfield

that there was no difference between the drugs and refused to

prescribe the form of Procardia requested. Mayfield concluded that

Dr. Swink’s refusal to prescribe the specifi c form of Procardia

requested was based solely on cost considerations. Mayfield was

returned to the Panola County Jail where he took the prescribed

medications for about a week. Mayfield testified that he stopped

taking the medication when he experienced a skin reaction.

On April 10, 1995, Mayfield filed this suit against sheriff

Ellett in the Eastern District of Texas alleging improper medical

attention, lack of outside recreation, inadequate dietary

accommodations, improper cell lighting, and the improper refusal of

his request to retrieve his spectacles and clothes from his motor

hom e when he was initially arrested. Specifically, Mayfield5

complaine d that, in addition to his denial of requested medical

treatment, he was forced to inhabit a cel l in which a bunk light

designed to “dim” during sleeping hours remained fully illuminated;

was denied a special low salt/low fat diet more appropriate for his

heart condition; was denied outdoor recreation because the

detainees residing in the jail rece ived sunlight only through a

skylight in the indoor gymnasium; and was denied his clothing and

p rescription spectacles left in his motor home. The initial

complaint requested only equitable relief.

On April 12, 1995, Mayfield pleaded guilty to possession of

marihuana and was sentenced to five years’ imprisonment.

On April 19, 1995, de Presca ordered Mayfield to be placed in

isolation for medical reasons. At the time of his isolation,

Mayfield had some form of skin rash. Mayfield remained in

isolation u ntil May 1, 1995. On April 20, 1995, a Panola County

deputy again took Mayfield to the Panola County Hospital. Mayfield

informed the nurse that the medication prescribed by Dr. Swink on

March 28, 1995, had caused a severe skin reaction. Mayfield left

the h ospital before he could be seen by Dr. Swink because the

deputy escorting him was called away.

On April 24, 1995, a letter from Mayfield dated April 19,

1995, was received by the Eastern District of Texas and assigned to

the magist rate judge responsible for his complaint. The letter

complained of the skin reaction and the magistrate judge construed

it as a motion for preliminary injunctive relie f seeking medical6

treatment.

On April 25, 1995, Mayfield again vis ited the Panola County

Hospital and was seen by Dr. Swink. Mayfield told Dr. Swink that

he had awakened to blood in his mouth and eye and that his right

cheek was swollen. The nurse, however, found no swelling in that

area. Mayfield told the nurse that he had noticed white spots on

his skin after he began taking the Adalat and the Propanoil and

therefore had stopped taking the medi cation three weeks earlier.

Dr. Swink testified that he overheard Mayfield’s conversation with

the nurse and called the jail to get Mayfield’s medication records,

which indicated that Mayfield had refused medication for only two

days. According to Dr. Swink, when confronted with the discrepancy

between Mayfield’s earlier contention that he had stopp ed taking

the medicine three weeks prior to his visit and the medication

records, Mayfield became argumentative and w as excused from the

emergency room. Dr. Swink testified that he directed Mayfield to

continue to take the prescribed medication. At the time of

M ayfield’s third visit to the hospital, Dr. Swink observed no

physical side effects on Mayfield’s person.

On May 4, 1995, Mayfield was transferred to the custody of the

TDCJ. While in the custody of the TDCJ, Mayfield has been

prescribed Nitroglycerine, Metro PR, Lasix, Fosinopril, and

Prazosin. Mayfield’s blood pressure has remained high throughout

his custody. Also on May 4, the magistrate judge recommended

denial of Mayfield’s motion for preliminary injunctive relief.7

On June 15, 1995, the district court adopted the magistrate

judge’s recommendation to dismiss Mayfield’s motion for preliminary

injunctive relief on the grounds that, as Mayfield was no longer in

the Panola County Jail, his request for preliminary injunctive

relief was moot.

On August 8, 1995, the magistrate judge recommended dismissal

of Mayfield’s civil rights action, w hich also sought solely

equitable and injunctive relief, on the grounds that Mayfi eld’s

transfer to the TDCJ rendered his action moot. Mayfield thereafter

added a claim for damages in his objections to the magistrate

judge’s recommendation on August 18, 1995. Mayfield’s supplemental

complaint sought $1 million compensatory damages and $1 million

punitive damages.

As a result of Mayfield’s new damage claims, the magistrate

judge withdrew the recommendation for dismissal on October 10,

1995.

A hearing under Spears v. McCotter

, 766 F.2d 179 (5th Cir.

1985), was held before the magistrate judge on January 24, 1996, at

which Mayfield, Dr. Swink, and Chief Deputy de Presca tes tified.

At the Spears hearing, the parties consented to jurisdiction by the

magistrate judge.

On February 5, 1996, a letter from Mayfield was received by

the Eastern District of Texas requesting an injunction of a pending

state perjury prosecution brought by Deputy Sheriff de Presca8

allegedly in retaliation for Mayfield’s civil rights complaint.

On February 6, 1996, the magistrate judge dismissed with

prejudice Mayfield’ s civil rights action on the grounds that the

claims were frivolous. In making her decision, the magistrate

judge construed all testimony given by Mayfield as true and

considered all other testimony only to the extent it did not

contradict that given by Mayfield.

On February 12, 1996, Mayfield filed a complaint seeking the

injunctive relief requested in his letter received by the district

court on February 5, 1996.

On February 20, 1996, Mayfield filed a notice of appeal of the

magistrate judge’s dismissal of his civil rights action.

On February 21, 1996, the magistrate judge denied Mayfield’s

request for injunctive relief.

Before this Court is Mayfield’s app eal from the magistrate

judge’s dismissal of his civil rights complaint.

Discussion

An in forma pauperis complaint is subject to dismissal as

frivolous if it is unsupp ortable in law or fact. R eeves v.

Collins

, 27 F.3d 174, 176 (5th Cir. 1994) (citing Denton v.

Hernandez

, 112 S.Ct. 1728, 1733 (1992)). Such a dismissal is

reviewed under the abuse of discretion standard. Id.

As a threshold matter, we recognize t hat the events and

circumstances that Mayfield asserts violate his constitutional9

rights largely occurred during the period he resided at the jail as

a pretrial detainee. From his initial arrest and incarceration at

the jail on March 19, 1995, until his guilty plea and conviction on

April 12, 1995, Mayfield was a pretrial detainee rather than a

convicted inmate.

The Panola County Jail houses both pretrial detainees and

convicted prisoners awaiting transfer to the TDCJ. We have long

recognized, however, that each group “look[s] to different

constitutional provisions for their respective rights to basic

needs such as medical care and safety.” Hare v. Corinth , 74 F.3d

633, 639 (5th Cir. 1996) (en banc) (citing E stelle v. Gamble , 97

S.Ct. 285, 291 (1976)). Whereas convicted state prisoners are

pro tected by the Eighth Amendment’s prohibition on cruel and

unusual punishment and, to a limited degree, subs tantive due

process, pretrial detai nees are protected by the “procedural and

s ubstantive due process guarantees of the Fourteenth Amendment.”

Id. Accordingly, conditions of confinement may “constitute

deprivations of lib erty without due process if they amount to

punishment of the detainee.” H arris v. Angelina County

, 31 F.3d

331, 334 (5th Cir. 1994); see also Hare

, 74 F.3d at 639 (“The State

cannot punish a pretrial detainee.”) (ci ting B ell v. Wolfish

, 99

S.Ct. 1861, 1872 (1979)). A proper determination of whether a

condition of confinement of a pretrial detainee a mounts to

punishment “turns on wheth er ‘the disability is imposed for the10

purpose of punishme nt or whether it is but an incident of some

other legitimate governmental purpose.’” H a rris , 31 F.3d at 334

(quoting Bell , 99 S.Ct. at 1873); see also Bell , 99 S.Ct. at 1874

(“Thus, i f a particular condition or restriction of pretrial

detention is reasonably related to a legitimate governm ental

objective, it does not, witho ut more, amount to ‘punishment.’”).

Given the heightened due process protection afforded pretrial

detainees, it is apparent that confinement conditions violative of

the Eighth Amendment are assuredly violative of a pretrial

detainee’s due process rights as well. See Hare , 74 F.3d at 639;

Harris , 31 F.3d at 334.

When a pretrial detainee challenges “general conditions,

practices, rules, or restrictions of pretrial confinement,” the

Bell test applies——the challenged policy or condition must be

reasonably related to a legitimate governmental interest, such as

security. H are

, 74 F.3d at 643. When, however, a pretrial

detainee challenges a jailor’s “episodic acts or omissions, the

Bell test is inapplicable, and hence the proper inquiry is whether

the official had a culpable state of mind in acting or failing to

act.” I d. (adopting a standard of subjective deliberate

indifference as the measure of culp ability for episodic acts or

omissions).

We note, as did the magistrate judge, that Mayfield named only

sheriff Jack Ellett in his complaint; no other members of the11

sheriff’s staff were added and no amended complaint was filed.

Section 1983, of course, does not support respondeat superior

liability. M onell v. Department of Social Svcs.

, 98 S.Ct. 2018,

2036-38 (1978); Lefall v. Dallas Indep. Sch. Dist.

, 28 F.3d 521,

525 (5th Cir. 1994); Mouille v. City of Live Oak

, 977 F.2d 924, 929

(5th Cir.), cert. denied

, 113 S.Ct. 2443 (1993); Thompkins v. Belt

,

828 F.2d 298, 304 (5th Cir. 1987). Without a showing that Sheriff

Ellett participated personally in the allegedly unconstitutional

treatment, his liability——der iving solely from his capacity as

Panola County’s elected sherif f——requires a finding that he

established or implemented a policy that was itself a repudiation

of constitutional rights and was the “‘moving force of the

constitutional violation .’” T hompkins

, 828 F.2d at 304 (quoting

Monell

, 98 S.Ct. at 2037). The same is true insofar as Ellett was

sued in his official capacity, that is insofar as the suit may be

regarded as one against the county. I d

. Mayfield concedes that he

spoke with sheriff Ellett only once, after the filing of his

action. Mayfield also conceded that his complaint (at least as

respects claimed inadequate medic a l attention) centers on the

actions of others.

I. Inadequate Medical Attention

In order to prevail on his inadequate medical attention claim,

May field must either establish that there was a condition,

practice, rule, or restri ction that prevented adequate medical12

care, Hare

, 74 F.3d at 643, or that an episodic act or omission

resulted from the defendant’s “deliberate indiffer ence,” i d. As

Mayfield neither asserts nor offers evidence of such a condition,

practice, rule, or restriction, and, in fact, acknowledges that the

jail had a system designed to gather medical information, alert

officers to the need for medical attention, and provide for free,

accessible medical services and m edication, his claim for

inadequate medical attention rests entirely on his ability to

establish d eliberate indifference on the part of the defendant

sheriff Ellett.

As this Court instructed in Hare , for challenges to episodic

acts or omissions of jail officials that resulted in inadequate

medical attention, the Farmer standard of deliberate indifference

applies. Hare , 74 F.3d at 643. Farmer held:

“[A] prison official cannot be found liable

. . . unless

the official knows of and disregards an excessive risk to

inmate health or safety; the official must both be aware

of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also

draw the inference.” F armer v. Brennan

, 114 S.Ct. 1970,

1979 (1994); see also Reeves

, 27 F. 3d at 176 (applying

Farmer standard to an inadequate medical attention

claim).

Under this standard, neither “[u]nsuccessful medical treatment” nor

“‘[m]ere negligence, neglect or medical malpractice’” gives rise to

a section 1983 cause of action. V arnado v. Lynaugh

, 920 F.2d 320,

321 (5th Cir. 1991) (citations omitted). We have stated that delay

in medical care can only constitute a cognizable section 1983 claim13

if the delay in treatment results in substantial harm. S ee Mendoza

v. Lynaugh

, 989 F.2d 191, 195 (5th Cir. 1993) (addressing the issue

in the Eighth Amendment context).

In light of the foregoing principles, we find no merit in

Mayfield’s inadequate medical attention claim and affir m the

magistrate judge’s dismissal. First, assuming as true Mayfield’s

contention that he suffered a nine-day delay in receiving medical

attenti on, he offered no evidence that it was the delay——rather

than some other factor such as stress, age, or the normal

vicissitudes of life in a detention facility——that caused his

condition to worsen. Second, Mayfield has failed to establish that

he has suffered sub stantial harm from the purported delay.

Instead, Mayfield’s argument is directed more at the course of

treatment rather than the delay in receiving medical attention. On

three separate occasions Mayfield w as taken to the Panola County

Hospital. On two of those visits, he was examined by the attending

physician, Dr. Swink. Dr. Swink presented uncontroverted testimony

that he prescribed medication tha t he believed to be in the best

interest of Mayfield’s health. Although Mayfield contends that the

medication provided was “wrong,” such an assertion, even if true,

does not affect the merits of his section 1983 claim. And, we note

that Mayf ield himself discontinued his medication and refused to

follow the medical course of treatment prescribed by his physician.

Finally, there is no evidence tending to establish the necessary14

connection to Ellett (or the county) in respect to the matters

complained of, as required by Tomkins as discussed above;

respondeat superior simply does not suffice. Accordingly, we find

that the magistrate judge was well within her discretion to dismiss

the inadequate medical attention claim.

II. Outdoor Recreation

Mayfield’s second claim asserts that the failure of the Panola

County Jail to offer pretrial detainees outdoor recreation amounts

to an unconstitutional punishment. Presumably, Mayfield relies on

the statement in this Court’s opinion in Miller v. Carson

, 563 F.2d

741 (5th Cir. 1977), that:

“We find that the continuous incarceration of presumably

innocent persons in an insti tution designed to punish,

where outdoor recreation is reasonably possible, is

unnecessarily restrictive and therefore punishes the

innocent in violation of procedural due process.” I d. at

750.

F rom the outset, we note that the facts presented in Mille r are

starkly different from the facts here presented. First, M iller was

a “totality-of-conditions” case involving shockingly inhumane

overall conditions that warranted general, systemic remedies beyond

the redress of specific constitutional violations. S ee id. at 745,

751. Second, M iller was decided before Bell

, 99 S.Ct 1861, and its

broad characterization of the right to outdoor recreation would

seem, at the very least, to be tempered by the Su preme Court’s

articulation of the standard for evaluating the constitutionality1 The panel opinion in Jones v. Diamond

, 594 F.2d 997, 1013 (5th

Cir. 1979), vacated on reh’g , 636 F.2d 1364 (5th Cir.) (en banc),

cert. dismissed

, 102 S.Ct. 27 ( 1981), noting that M iller stated

that pretrial detainees “may not be continuously incarcerated in an

institution designed to punish, where outdoor recreation is

reasonably possible,” held that “[t]his does not reach so far as to

hold that ev ery pretrial detainee in every jail is automatically

entitled as a matter of constitutional right to outdoor exercise.”

On rehearing, the en banc court was evenly divided on the issue,

resulting in an affirmance of the district court’s denial of

relief. J ones

, 636 F.2d at 1376. In G reen v. Ferrell

, however, we

reversed a magistrate judge’s i njunction requiring a jail to

provide outdoor exercise in the absence of specific findings of

medical harm, 801 F.2d 765, 771-72 (5th Cir. 1986) (noting that

pretrial detainees in the detention facility, who were included in

the plaintiff class, spent, on average, only ten days in the jail).

15 of pretrial confinement conditions. 1

In assessing the merit of Mayfield’s claim that he was denied

outdoor exercise in contravention of his constitutional rights, we

must return to the guiding principles set forth in Bell

. More than

anything else, Bell warned that, when “determining whether

restr ictions or conditions are reasonably related to the

Government’s interest in maintaining security an d order and

operating the institution in a manageable fashion,” Bell

, 99 S.Ct.

at 1875 & n.23, federal courts should weigh heavily the axiom that

“‘[s]uch considerations are peculiarly within the province and

professional expertise of corrections officials, and, in the

absence of substantial evidence in the record to indicate that the

officials have exaggerated their response to these considerations,

courts should ordin arily defer to their expert judgment in such

matters,’” id

. (citation omitted). B ell wen t on to consider16

several factors in evaluating the restrictions there at issue.

First, the Court observed that nearly all of the detainees were

released within sixty days of their incarceration. I d. at 1876.

Second, the Court stated that, although pretrial detainees retain

certain constitutional rights, these rights were subject to

restrictions and limitations. I d. at 1877. Third, the Court

observed that “maintaining institutional security and preserving

internal order and discipline” may require circumscription of the

retained constitutional rights of convicted prisoners and pretrial

detainees alike. Id. at 1878 (noting that there “is no basis for

concluding that pretrial detainees pose any lesser se curity risk

than convicted inmates. Indeed, it may be that in certain

circumstances they present a greater risk to jail security and

order.”); see also Block v. Rutherford

, 104 S.Ct. 3227, 3231 (1984)

(“The very fact of nonrelease pending trial thus is a significant

factor bearing on the security measures that are imperative to

proper administration of a detention facility.”).

In light of the factors considered, Bell proceeded to uphold

the federal deten tion facility’s “publisher only” rule regarding

the permissible receipt of reading materials, id. at 1881; the

restriction limiting the receipt of personal packages to food items

at Christmas, id. at 188 2; the facility’s “shakedown” procedures

prohibiting inmates from observing cell searches, id. at 1883-84;

and, finally, the facility’s strip search procedures requiring body17

cavity searches after each contact visit, id. at 1884-85. The

Court held that the restrictions imposed were of limited duration

and that the complainants failed to meet their “heavy burden of

showing that the[] officials have exaggerated their response to the

genuine security considerations that actuated these restrictions

and practices.” Id. at 1886.

Mayfield te stified that, although he was permitted regular

access to the dayroom and the jail gymnasium, he was never afforded

outdoor recreation. Mayfield concedes that the gymnasium had a

frosted skylight, but argues, without any indication of supporting

evidence, that this was inadequate. Chief Deputy de Presca

testified that the Panola County Jail has no outdoor recreation

facility and that the skylight was installed in the gymnasium in

1985 to meet the state requirement that inmates be given access to

sunlight. De Presca further testified that inmates, including

Mayfield, were given access to the gymnasium at least three times

weekly, at least one hour at a time. Mayfield did not dispute

this.

Given the physical constraints of the Panola County Jail

facility, we are convinced that the facts alleged by Mayfield would

not even arguably suffice to sustain a finding that he was

unconstitutionally punished within the meaning of the Fourtee nth

Amendment. As B ell recognized that ensuring security and order at

detentio n facilities is a permissible nonpunitive objective, we2 We also note that Mayfield did not testify or adduce any

evidence that he ever requested outdoor exercise. In addition,

Mayfield’s heart condition, provided it was as serious as claimed,

may well have precluded any exercise during his stay at the Panola

County Jail.

18 cannot say that the scheme employed at the Panola County Jail

facility does not strike a permissible balance between meeting that

permissible objective and affording inmates needed recreation and

sunlight to the extent reasonably——and practically——available. 2

See Block v. Rutherford

, 104 S.Ct. at 3234 (stating that a federal

court’s “balancing” of a detention facili ty’s security measures

against the importance of family visits resulted in impermissible

substitution of the court’s views regarding prison administration).

Whatever remains of the general language set forth in Miller after

Bell and Green

, we are quite certain that it does not conf er a

constitutional right to exercise in unfiltered sunlight in an

otherwise acceptable custodial facility regardless of the

facility’s phys ical constraints. To hold otherwise would fly in

the face of Bell ’s admonition against becoming enmeshed in the

minutiae of prison operations.

Accordingly, we hold that the magistrate judge did not abuse

her discretion by dismissing Mayfield’s claim regarding inadequate

outdoor recreation as frivolous.

III. Inadequate Diet Accommodations

In his initial complaint, Ma yfield asserted that the Panola

County Jail viola ted his constitutional rights by denying him a19

special d iet. In his brief, Mayfield does not elaborate on his

position other than to assert that he requested a special diet.

The magistrate judge’s opinion concluded that Mayfield was not

entitled to a special diet because his treating physician

determined that it was not medically necessary, citing C up it v.

Jones

, 835 F.2d 82, 86 (5th Cir. 1987). Mayfield has failed to

adequately raise any issue on appeal in this respect. See Lott v.

Hargett

, 80 F.3d 161, 166 (5th Cir. 1996); R.A.M. Al-Ra’id v.

Ingle

, 69 F.3d 28, 31 (5th Cir. 1995); Bri nkman v. Dallas County

Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987).

IV. Injunction of the State Perjury Prosecution

Mayfield argues that the magistrate judge abused her

discretion by her denial of his motion for an injunction of the

state court perjury prosecution. The issue, however, is not before

the Court and we therefore decl ine to address Mayfield’s

contention.

A timely notice of appeal is a jurisdictional prerequisite for

this Court to consider an appeal. S ee Robbins v. Maggio

, 750 F.2d

405, 408 (5th Cir. 1985) (citing Fed. R. App. P. 4(a)). Mayfield’s

notice of a ppeal is dated February 16, 1996, and was filed on

February 20, 1996. It has never been amended. Mayfield has filed

no other notice of appeal. The February 16, 1996, notice of

appeal, filed February 20, refers exclusively to the magistrate

judge’s February 6, 1996, denial of Mayfield’s civil rights action.3 Although a “‘notice of appeal typically divests the district

court of jurisdiction,’” Resolution Trust Co. v. Smith

, 53 F.3d 72,

76 (5th Cir. 1995), (quoting Alberti v. Klevenhagen

, 46 F.3d 1347,

1358 (5th Cir. 1995)), a “‘district court maintains jurisdiction as

to matters not in volved in the appeal.’” i d. (quoting Farmhand,

Inc. v. Anel Eng’g Indus.

, 693 F.2d 1140, 1145 (5th Cir. 1982)).

Accordingly, as Mayfield’s notice of appeal was filed before the

magistrate judge’s denial of his motion for injunctive relief, it

failed to divest th e magistrate judge of jurisdiction of that

matter.

20 The magistrate judge’s order denying Mayfield’s r equest for

injunctive relief was filed and entered on the docket on February

21, 1996.

This Court therefore l acks jurisdiction to consider the

propriety of the magistrate judge’s order denying injunctive relief

as to the state perjury prosecution. 3

V. Other claims

Mayfield does not appeal, and we do not address, the

magistrate judge’s dismissal of his claims regarding his cell

lighting, his spectacles, and his clothing.

Conclusion

Because the magistrate judge was well within her discretion to

dismiss Mayfield’s civil rights action as frivolous, and because

the denial of Mayfield’s motion for injunctive relief is not before

this Court, we AFFIRM.