* Local Rule 47.5 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that this opinion should not be published. 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-10124

Conference Calendar 

__________________

DONALD LEE SPENCE,

 Plaintiff-Appellant,

versus

CHUCK MORRIS ET AL.,

 Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:93-CV-132-X

- - - - - - - - - -

June 28, 1995

Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

In his prolix, disorganized, and difficult-to-decipher

appellate brief, Appellant Donald Lee Spence has listed 11 issues

for review (several are repeated), including: (1) a

discrimination claim based on an allegation that the Defendants

refused to sign his § 1983 complaint, (2) an allegation that the

Defendants adumbrated the evidence of the case, (3) a claim that

the district court purposefully caused Spence to miss a filing

deadline, (4) an allegation that the policy of treating white
No. 95-10124

-2-

pretrial detainees differently from convicted prisoners resulted

in malicious discrimination against Spence, and (5) a claim that

the Defendants violated a contract with another county to provide

care for inmates. As these issues were neither raised nor

reviewed below, they need not be addressed.

The relevant issues Spence has addressed on appeal, which

were presented below, can be placed in three categories: (1) a

claim that his transfer from cell five was cruel and unusual

punishment, (2) a deliberate-indifference claim arising from his

assignment in cell eight, and (3) a claim that pretrial detainees

receive preferential treatment. Spence challenges the district

court's dismissal of his suit pursuant to FED. R. CIV. P. 12(b)(6)

for failure to state a claim.

"In reviewing a Rule 12(b)(6) dismissal, this court accepts

all well pleaded averments as true and views them in the light

most favorable to the plaintiff." Cooper v. Sheriff, Lubbock

County, Tex., 929 F.2d 1078, 1082 (5th Cir. 1991) (citation,

internal quotation, and alteration omitted). Such a dismissal

will not be upheld "unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief." Id. (citation and internal

quotations omitted). 

The transfer of Spence out of cell number five did not

occasion any constitutional violation. "[P]rison officials have

the authority to transfer an inmate to more restrictive quarters

for non-punitive reasons." Mitchell v. Sheriff Dep't, Lubbock

County, 995 F.2d 60, 63 (5th Cir. 1993). Spence has not stated
No. 95-10124

-3-

any facts that would indicate that the Defendants had a punitive

motive for transferring him or that the place to which he was

transferred was more restrictive. 

Spence's statement that he was made to sleep on the floor

also fails to state a claim. To state a claim of deliberate

indifference, Spence needed to allege that he was deprived of a

basic human need--the minimal civilized measure of life's

necessities. See Harris v. Angelina County, Texas, 31 F.3d 331,

334 (5th Cir. 1994). Spence has not alleged such a deprivation. 

At most, he complained that he was not comfortable when moved

outside of his preferred cell for a time. The constitution does

not require comfortable prisons. Farmer v. Brennan, 114 S. Ct.

1970, 1976, (1994).

Spence's allegation regarding the preferential treatment

accorded to pretrial detainees does not raise a constitutional

issue. Pretrial detainees are afforded a different level of

treatment from that due convicted prisoners. "[T]he due process

clause of the fourteenth amendment accords pretrial detainees

rights not enjoyed by convicted inmates under the eighth

amendment prohibition against cruel and unusual punishment." 

Cupit v. Jones, 835 F.2d 82, 84 (5th Cir. 1987). 

The district court did not err in dismissing Spence's suit. 

The decision is AFFIRMED.

Spence has moved this court to allow him to supplement the

record on appeal with information regarding a contract for care

of prisoners between Baylor and Wichita Counties. This

information was not presented to the district court. As we "will
No. 95-10124

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not ordinarily enlarge the record on appeal to include material

not before the district court," Spence's motion is DENIED. 

United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989)

(citation omitted).