* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40757

Summary Calendar

_____________________

MIGUEL RIOS, III,

Plaintiff - Appellant,

versus

JAMES T. HICKEY, Sheriff of Nueces County, Texas; 

ROBERT BARNES, County Judge,

Defendants - Appellees.

________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(C-94-CV-99)

________________________________________________

March 22, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Miguel Rios, III, pro se and in forma pauperis, appeals the

dismissal of his 42 U.S.C. § 1983 action. We AFFIRM. 

I.

Rios claimed that the defendants, while holding Rios in

protective custody, negligently failed to protect him from injury

by inmate gang members. He claimed also that he was injured due to

the negligence of the defendants in failing to protect him from

another such incident during his incarceration two years later.
1 Rios failed to comply with the district court's January 10,

1995, order requiring him to file an amended complaint by February

6, 1995. His eventual response was four months late.

Although the district court cited Rule 41(b) as a basis for

its dismissal, on appeal Rios failed to address the issue of

dismissal for failure to prosecute. The issue is waived. Brinkman

v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987) (if appellant fails to address issue in brief, issue deemed

abandoned). In any event, we address § 1915(d).

2 Rios asserts also that the district court abused its

discretion by refusing to acknowledge Rios' request that service of

process be made. Rios refers to letters that are not in the

record. Similarly, the motion for service of process attached to

- 2 -

Citing both FED. R. CIV. P. 41(b) and 28 U.S.C. § 1915(d), the

district court dismissed the action with prejudice.1

II.

A.

We review § 1915(d) dismissals for abuse of discretion. E.g.,

Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).

In the district court, Rios failed to allege any conduct by

the defendants rising above mere negligence. See, e.g., Daniels v.

Williams, 474 U.S. 327 (1986) (due process clause not implicated by

negligent acts of state officials). Moreover, he failed to allege

any personal involvement by the presently named defendants. See

Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.) (holding personal

involvement to be essential element of civil rights action), cert.

denied, 464 U.S. 897 (1983). Finally, Rios failed to allege a

policy or custom on the part of the county. Colle v. Brazos

County, Texas, 981 F.2d 237, 244 (5th Cir. 1993). In sum, Rios'

claim of constitutional injury lacks any basis in law. Booker v.

Koonce, 2 F.3d at 115.2
Rios' brief was never filed in the district court.

Even if the request for service of process had been made

properly, the district court would have acted within its discretion

in dismissing the suit as frivolous before incurring the cost of

serving process on the defendants, the court having found the

claims to be frivolous. See Spears v. McCotter, 766 F.2d 179, 181

(5th Cir. 1985) (holding that pro se defendants may be required to

provide more definite statement of substance of claim before

service of process is required). 

3 Because we affirm the dismissal of Rios's action, we also DENY

as moot his motion to appoint counsel.

- 3 -

 B.

Rios asserts that the district court abused its discretion in

dismissing the complaint without allowing him to conduct discovery.

He attached to his appellate brief proposed discovery requests

which would address, for the first time on appeal, a different

factual basis for his claim, namely that the defendants acted

deliberately, rather than negligently. 

Because Rios was given ample opportunity to develop the

factual basis of his claim in district court, he is not entitled to

further discovery or to amend his complaint now. See Macias v.

Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 98 n.5 (5th Cir.),

cert. denied, __ U.S.__, 115 S. Ct. 220 (1994). Rios' claims in

the district court were limited to allegations of negligence. In

reviewing the district court's dismissal, our court is "not free to

speculate that the plaintiff `might' be able to state a claim if

given yet another opportunity to add more facts to the complaint".

Macias, 23 F.3d at 97.3
- 4 -

III.

For the foregoing reasons, the judgment is

AFFIRMED.