* Local rule 47.5 provides: “The publication of opinions that have no precedential value

and merely decide particular cases on the basis of well-settle d principles of law imposes

needless expense on the public and burdens on the legal profession.” Pursuant to that Rule,

the Court has determined that this opinion should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20678

Summary Calendar

DANA NEIL LOCKE,

Plaintiff-Appellant,

versus

GARY JOHNSON; JAMAIL, Mr.; HORTON, Mrs.;

SCHRADER, Mrs.; A. PORTER, Mrs.; MOSLEY, Mr.;

LONG, Mr.; GARCIA, Mr.; WILLIAMS, Mrs.;

RODRIGUES, Mr.; BROWN, Mrs.; RAGSDALE, Mr.;

BUTCHER, Mr.,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(CA H 94-3276)

November 30, 1995

Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

PER CURIAM: *

Dana Neil Locke appeals the dismissal of his pro se

, in forma pauperis

, 42 U.S.C. §

1983 complaint against various officers and employees of the Texas Department of Criminal

Justice-Institutional Division. Finding no abuse of discretion, we affirm.1 Locke is the only named plaintiff reflected in the notice of appeal where the caption

refers to the plaintiffs as “Dana Neil Locke, et al.” Although the notice of appeal states that

the plaintiffs appeal, only Locke signed the notice and, accordingly, only he has perfected

an appeal. Fed. R. App. P. 3(c).

2 Background

Locke and four other Texas prisoners in the F erguson Unit filed this civil rights

complaint 1 alleging that a condition of confinement, CAT III cell restriction, violated their

federal and state constitu tional rights. CAT III cell restriction is a disciplinary status for

inmates who refuse or are unable to report to th eir assigned jobs. On CAT III, inmates

remain in their cells except for one daily shower and one weekly hour of recreation. Locke

alleges that he was allowed a shower only two or three times weekly and that, as a result, he

suffered from crab lice, jock itch, and persistent colds. He bases his claim that his ailments

resulted from the lack of showers on allegations that the unit doctors told him so and because

o f knowledge he acquired during military service. Locke acknowledges that he received

medical care when needed, but he claims that Unit Warden Johnson and Officer Jamail

refused to investigate his grievances about the showers and took no action to remedy the

problem. Locke also alleges that sometimes there was no soap in the showers, the water

temperature on certain occasions was too hot or too cold, and that clean clothing was not

provided after showering. Finally, Locke alleges an unidentified employee refused to

provide him with first name s or initials of the sixteen persons he intended to name in the

complaint who denied him permission to shower on at least one occasion.

Analysis

An inmate seeking relief under 42 U.S.C. § 1983 must establish two essential

elements: that the conduct complained of was committed under color of state law, and that2 Hernandez v. Maxwell , 905 F.2d 94 (5th Cir. 1990).

3 28 U.S.C. § 1915(d).

4 Gartell v. Gaylor , 981 F.2d 254, 256 (5th Cir. 1993).

5 Ancar v. Sara Plasma, Inc. , 964 F.2d 465 (5th Cir. 1992).

6 Wilson v. Seiter , 501 U.S. 294 (1991).

7 See Farmer v. Brennan , 114 S.Ct. 1970 (1994).

8 Rhodes v. Chapman , 452 U.S. 337 (1981).

3 the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United

States. 2 Section 1915(d) authorizes a federal court to dismiss a claim filed i n forma

pauperis “if satisfied that the action is frivolous or malicious.” 3 An action is frivolous if it

“lacks an arguable basis in either law or in fact.” 4 We review the district court’s dismissal

as frivolous under an abuse of discretion standard. 5

We conclude that

the district court did not abuse its discretion in dismissing this

complaint. Locke maintains that the district court erred because the conditions of

confinement for CAT III inmates constituted cruel and unusual punishment under the eighth

amendment. This standard requires that prison officials not exhibit deliberate indifference

to an inmates’ needs. 6 To establish this deliberate indifference, Locke must show that the

defendants (1) were aware of facts from which an inference of an excessive risk to Locke’s

health or safety coul d be drawn and (2) drew an inference that such potential for harm

existed. 7 With this standard in mind, it is clear that the district court did not abuse its

discretion in finding that Locke’s alleged shower privileges did not constitute cruel and

unusual punishment under the eighth amendment. The conditions of confinement may be

restrictive and even harsh; that is part of the penalty society may impose for offenses against

it. 84

Locke moves this court for appointment of counsel on appeal. Locke has adequately

presented his issues on appeal. Concluding that those issue are without merit, the motion for

appointment of counsel is denied.

The dismissal by the district court is AFFIRMED.