1 Local Rule 47.5.1 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled 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should not be published.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. 95-10324

Summary Calendar

_____________________

PAUL J. CONNALL,

Plaintiff-Appellant,

and

JAMES RUSSELL HULL,

Plaintiff,

VERSUS

JAMES A. COLLINS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION; R. DREWRY, WARDEN;

C. BELL, WARDEN; J.V. YOUNG, WARDEN; W. STEPHENS, MAJOR,

Defendants-Appellees.

____________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(1:94-CV-101-C)

____________________________________________________

October 30, 1995

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIUM:1

Paul Jeffrey Connall, an inmate at the Texas Department of

Criminal Justice (TDCJ-ID), appeals the dismissal of his claim.

Because we agree with the district court that the claim is

frivolous, we AFFIRM.
2 James Russell Hull was a named plaintiff in the original

complaint. However, the district court dismissed Hull's claims

without prejudice due to his failure to pay the filing fee or file

an application to proceed IFP. 

3 See Ruiz v. Estelle, 650 F.2d 555, 570 (5th Cir. 1981)

(subsequent history not noted) for reference. The consent decree

was not made part of the record. However, because, as discussed

infra, a violation of a consent decree cannot form the basis of a

§1983 action, we need not consider what, if anything, the decree

required the defendants to do.

- 2 -

I.

Connall brought this 42 U.S.C. § 1983 action against various

officers and employees of TDCJ-ID, claiming that the policy of

forced racial integration of cells violated his federally-protected

rights.2 Connall alleged both that the defendants violated the

consent decree in Lamar v. Coffield3 and that their failure to

afford him a racially segregated cell assignment also violated the

Eighth and Fourteenth Amendments. 

The magistrate judge held a Spears hearing and then

recommended dismissing Connall's complaint as frivolous, pursuant

to 28 U.S.C. § 1915(d); and Connall filed objections to the

magistrate judge's report. The district court, over those

objections, adopted the report and dismissed the complaint as

frivolous.

II.

A complaint is frivolous if it lacks an arguable basis in

law or fact. 28 U.S.C. § 1915(d); e.g., Ancar v. Sara Plasma,

Inc., 964 F.2d 465, 468 (5th Cir. 1992). This court reviews the

district court's dismissal as frivolous only for abuse of

discretion. Ancar. It is inappropriate to dismiss a claim as
- 3 -

frivolous if, with additional factual development, the allegations

may pass § 1915(d) muster. Eason v. Thaler, 14 F.3d 8, 10 (5th

Cir. 1994).

A.

To the extent that Connall's claim concerns a violation of a

consent decree, it is not cognizable under §1983 because, under the

law of this circuit, a remedial decree does not create rights

secured by the laws within the meaning of §1983. Galloway v. State

of Louisiana, 817 F.2d 1154, 1157 (5th Cir. 1987). "[A] remedial

court order, standing alone, does not serve as the basis for § 1983

liability." Green v. McKaskle, 788 F.2d 1116, 1124 (5th Cir.

1986). 

B.

1.

 Racial segregation in prisons is unconstitutional, except to

the extent necessary for prison security and discipline. Lee v.

Washington, 390 U.S. 333, 333-34 (1968). Connall has no

constitutionally protected liberty interest in being provided a

racially-segregated, and therefore unconstitutional, cell

assignment based solely on his desire not to be so assigned. His

assignment does not violate the Fourteenth Amendment.

2.

The Eighth Amendment does provide prisoners protection against

injury at the hands of other inmates. Johnston v. Lucas, 786 F.2d

1254, 1259 (5th Cir. 1986). However, in order to establish

liability under the Eighth Amendment for denial of protection
4 See McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979).

- 4 -

against harm from other inmates, the prisoner must show deliberate

indifference by prison officials. Id. at 1260. A prison official

acts with deliberate indifference "only if he knows that inmates

face a substantial risk of serious harm and [he] disregards that

risk by failing to take reasonable measures to abate it". Farmer

v. Brennan, 114 S. Ct. 1970, 1984 (1994). 

Based upon the Spears hearing, the magistrate judge made the

following factual findings, which the district court adopted: 

Although [Connall] claims to have a number of

enemies . . . , none of the instances in which

he refused his cell assignment has even been

alleged to [involve] one of those enemies.

The sole reason espoused for [Connell's]

refusal for integration has been his desire to

maintain his racist attitude and belief.

There is no evidence of any alleged assault

during the times that [Connall] [has been] an

inmate at the French Robertson Unit, [TDCJ-ID]

. . . .

The magistrate judge concluded that "[Connall had] not been

assaulted or injured as a result of any forced integration."

Therefore, no harm existed to which the defendants could have been

deliberately indifferent.

In Connall's objections to the magistrate judge's report, he

alleged that he had been a victim of violence and theft by black

and hispanic inmates. However, even if the district court had

construed the objection as a motion to amend his complaint to

allege those additional facts,4 the court would have been within
5 Connall's motion to file a supplemental brief is DENIED.

- 5 -

its discretion in dismissing the claim as frivolous because Connall

has not alleged that the defendants were deliberately indifferent

in connection with those additional facts.5 

III.

For the foregoing reasons the judgment of the district court

is 

AFFIRMED.