* Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled 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opinion should not be published.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

FIFTH CIRCUIT

_______________

No. 95-20033

(Summary Calendar)

_______________

ANTONIO M LACY and

DAVID ALLEN WALLIS,

Plaintiffs-Appellants,

versus

JAMES A COLLINS,

Director, Texas Department

of Criminal Justice, Institutional

Division, ET AL.,

Defendants-Appellees.

_______________________________________________

Appeal from the United States District Court

For the Southern District of Texas

CA H 94 2515

_______________________________________________

August 8, 1995

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

Antonio Lacy, an inmate of the Texas Department of Criminal

Justice's Institutional Division, appeals the district court's

dismissal, under 28 U.S.C. § 1915(d) (1988), of his pro se, in

forma pauperis civil rights suit. We affirm. 
-2-

I

Antonio Lacy filed a complaint under 42 U.S.C. § 1983 (1988),

alleging that the conditions of his confinement violate his Eighth

Amendment rights. Specifically, Lacy alleges that prison officials

(1) allow HIV-positive inmates to masturbate and ejaculate in the

prison dayroom, contaminating the drinking fountain and other

surfaces; (2) allow inmates to expose themselves to female

employees, potentially discouraging the female employees from

responding to inmates' emergency calls; (3) allow inmates to use

vulgar and indecent language in speaking to prison employees and

other inmates; and (4) allow inmates to play televisions and radios

at high volume. In his complaint, Lacy alleged that prison

officials do not enforce prison regulations designed to prevent

these problems, despite his and other inmates' complaints. After

Lacy responded to an Order for a More Definite Statement, the

district court dismissed Lacy's complaint as frivolous under 28

U.S.C. § 1915(d), concluding that all four claims had no arguable

basis in law. Lacy appeals, arguing that the district court abused

its discretion in dismissing his complaint under § 1915(d). 

 II

A district court may dismiss an in forma pauperis complaint as

frivolous under § 1915(d) if it lacks an arguable basis in law or

fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827,

1831-32, 104 L. Ed. 2d 338 (1989); Eason v. Thaler, 14 F.3d 8, 10

(5th Cir. 1994). "A complaint is legally frivolous if it is

premised on an `indisputably meritless legal theory.'" Boyd v.
-3-

Biggers, 31 F.3d 279, 281-82 (5th Cir. 1994) (quoting Neitzke, 490

U.S. at 327, 109 S. Ct. at 1833); see also Moore v. Mabus, 976 F.2d

268, 271 (5th Cir. 1992) (reversing § 1915(d) dismissal based on

"potentially erroneous legal conclusions" (citing Neitzke, 490 U.S.

at 328-30, 109 S. Ct. at 1833-34)). We review a district court's

§ 1915(d) dismissal of an in forma pauperis complaint for abuse of

discretion. Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728,

1733-34, 118 L. Ed. 2d 340 (1992). We consider whether "(1) the

plaintiff is proceeding pro se, (2) the court inappropriately

resolved genuine issues of disputed fact, (3) the court applied

erroneous legal conclusions, (4) the court has provided a statement

of reasons which facilitates `intelligent appellate review,' and

(5) any factual frivolousness could have been remedied through a

more specific pleading." Moore, 976 F.2d at 270 (quoting Denton,

504 U.S. at 34, 112 S. Ct. at 1734).

"[T]he treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny under

the Eighth Amendment." Helling v. McKinney, ___ U.S. ___, ___, 113

S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993). "[A] prison official

violates the Eighth Amendment only when two requirements are met.

First, the deprivation alleged must be, objectively, `sufficiently

serious.'" Farmer v. Brennan, ___ U.S. ___, ___, 114 S. Ct. 1970,

1977, 128 L. Ed. 2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S.

294, 298, 111 S. Ct. 2321, 2324, 115 L. Ed. 2d 271 (1991)).

Second, the prison official must have acted with "deliberate

indifference." Id. at ___, 114 S. Ct. at 1977 (quoting Wilson, 501
-4-

U.S. at 302-303, 111 S. Ct. at 2326). 

 [A] prison official can[] be found liable under the

Eighth Amendment for denying an inmate humane conditions

of confinement [if] the official knows of and disregards

an excessive risk to inmate health and 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.

Farmer, ___ U.S. at ___, 114 S. Ct. at 1979. Whether a prison

official had the requisite knowledge "is a question of fact subject

to demonstration in the usual ways, including inferences from

circumstantial evidence, and a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that

the risk was obvious." Id. at ___, 114 S. Ct. at 1981 (citations

omitted).

A

Lacy claims that prison officials created unconstitutional

conditions of confinement by allowing HIV-positive inmates to

masturbate and ejaculate in the prison dayroom, placing other

inmates at risk of contracting the HIV virus. The district court

dismissed this claim on the grounds that prison administrators are

accorded wide discretion in running their institutions, including

decisions regarding measures taken to protect inmates from

contracting communicable diseases, unless any failure to so protect

inmates represents an omission sufficiently harmful to evidence

deliberate indifference to serious medical needs. 

Lacy may show that prison officials have been deliberately

indifferent to the risk created by HIV-positive inmates'

ejaculating in the prison dayroom only by showing that the
-5-

officials have been aware of the inmates' conduct and understand

that the conduct creates a substantial risk that other inmates will

contract the HIV virus. See Farmer, ___ U.S. at ___, 114 S. Ct. at

1979. Lacy explicitly alleged in the district court that he had

complained about the inmates' conduct to the prison officials. 

However, in order to grant relief, we must infer that the risk

created by the inmates' alleged conduct is obvious. See Farmer,

___ U.S. at ___, 114 S. Ct. at 1981 (holding that "a factfinder may

conclude that a prison official knew of a substantial risk from the

very fact that the risk was obvious"). There is no allegation that

any individual has contracted the HIV virus from the dayroom

environment, nor is there any basis for believing that the conduct

complained of, without more, creates a serious medical need for

official intervention. We are not prepared to hold, as a matter of

law, that the alleged conduct creates an obvious risk that other

inmates will contract the HIV virus.

In Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992), in reviewing

the § 1915(d) dismissal of a similar suit, we discussed prisoner

complaints of "serious constitutional violations related to the

`range of difficult, AIDS-related issues that confront all

correctional officials, administrators, policymakers and inmates as

they attempt to grapple with the problems engendered by the

presence of HIV infection in our nation's prisons and jails.'" Id.

at 271 (quoting Harris v. Thigpen, 941 F.2d 1495, 1499 (11th Cir.
 

1 Other circuits have also recognized these difficulties. See Gates

v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994) (deferring to prison policy of

excluding HIV infected inmates from food service for several reasons, such as

easing fears of inmates and as precaution against spreading infection when risks

are slight or unknown); Harris, 941 F.2d at 1519-20 (noting that "high risk

behavior occurs disproportionately in prison systems," requiring prison officials

to establish effective infection-control policies); Muhammad v. Carlson, 845 F.2d

175, 179 (8th Cir. 1988) (upholding constitutionality of prison policy requiring

segregation of HIV-infected inmates, in part because of court's "reluctance to

hinder prison officials' attempts to cope with the extraordinarily difficult

problems AIDS poses in a prison setting"), cert. denied, 489 U.S. 1068, 109 S.

Ct. 1346, 103 L. Ed. 2d 814 (1989).

 

2 We do not address whether the female employees' alleged failure to

conduct security checks is violative of the Eighth Amendment, because Lacy did

not bring this claim in his petition. "Although we liberally construe the briefs

of pro se appellants, we also require that arguments must be briefed to be

preserved." Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price

v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)) (citations

omitted).

-6-

1991)).1 We acknowledged that reviewing such claims does not

"involve the mere application of well-settled principles of law,"

and reversed the district court's § 1915(d) dismissal of the AIDsrelated claim. Id. However, alleging exposure to the HIV virus is

not a magic incantation that relieves a litigant from the

established constructs of Eighth Amendment law. The facts as

alleged by Lacy do not implicate Eighth Amendment concerns. Lacy

neither identifies the serious medical needs that he believes

prison officials have been indifferent to, nor is the risk obvious.

B

Lacy also argues that prison authorities have violated the

Eighth Amendment by allowing inmates to expose themselves to female

prison employees, which he claims will result in the female

employees' not responding to inmates' emergency calls. As support

for his claim, Lacy contends that female employees have already

failed to perform routine security checks in his cell block.2 The
 

3 In order for a claim to be ripe, the plaintiff "must show that he

`has sustained or is immediately in danger of sustaining some direct injury' as

the result of the challenged official conduct and the injury or threat of injury

must be both `real and immediate,' not `conjectural' or `hypothetical.'" City

of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S. Ct. 1660, 1665, 75 L. Ed.

2d 675 (1983). 

-7-

district court dismissed Lacy's claim as overly speculative. 

To have standing to bring his claim that prison authorities'

conduct has resulted in inmate conduct that might lead to allegedly

unconstitutional behavior on the part of female prison employees,

Lacy must show that he meets the standing requirements set forth in

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.

2130, 2136, 119 L. Ed. 2d 351 (1992):

First, the plaintiff must have suffered an injury in

fact))an invasion of a legally protected interest which

is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical. Second, there

must be a causal connection between the injury and the

conduct complained of))the injury has to be fairly

traceable to the challenged action of the defendant, and

not the result of the independent action of some third

party not before the court. Third, it must be likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.

Accord Ass'n for Retarded Citizens v. Dallas County Mental Health

& Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 243 (5th

Cir. 1994). Lacy fails to meet these requirements because his

claim that female prison employees will refuse to answer emergency

calls is conjectural and hypothetical.3 To the extent that it is

not, the likelihood that requiring prison guards to increase their

enforcement of prison regulations against inmates' publicly

exposing themselves will affect female employees' response to
 

4 In order for Lacy to have standing to bring this claim under Article

III of the Constitution, the alleged injury "must be `fairly' traceable to the

challenged action, and relief from the injury must be `likely' to follow from a

favorable decision." Allen v. Wright, 468 U.S. 737, 751, 758, 104 S. Ct. 3315,

3324, 3328, 82 L. Ed. 2d 556 (1984) (holding that it was overly speculative as

to whether enforcement of Internal Revenue Service rules which prohibited tax

breaks to racially discriminatory private schools would prevent segregated

schools, because withdrawal of tax breaks may not convince these private schools

to change policies or parents to transfer their children to nonsegregated

schools); accord National Treasury Employees Union v. Department of Treasury, 25

F.3d 237, 241 (5th Cir. 1994); see also Simon v. Eastern Ky. Welfare Rights Org.,

426 U.S. 26, 43-44, 96 S. Ct. 1917, 1926-27, 48 L. Ed. 2d 450 (1976) (holding

that it was overly speculative to conclude that suspending tax benefits to

private hospital would force hospital to take on more indigent patients).

 

5 See Rocky v. King, 900 F.2d 864, 871 (5th Cir. 1990) (characterizing

inmate's § 1983 claim that prison officials' failure to provide toilet and handwashing facilities for inmates working in fields violated his Eighth Amendment

rights as possibly deficient for standing purposes because it was overly

speculative that inmate's glaucoma condition would improve to enable him to be

assigned field work, before remanding to district court for dismissal on other

grounds); Lamar v. Whiteside, 606 F.2d 88, 88 (5th Cir. 1979) (dismissing

inmate's claim, which contended that employees hired by prison's alleged

discriminatory hiring practices would discriminate against minority inmates and

cause psychological harm, as too speculative to enable inmate to have standing);

see also Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir.) (holding that pro se

inmate lacked standing to bring § 1983 claim because he could not show actual

injury from prison's policy of refusing to allow employees to write letters of

recommendation for inmates, as he did not show that prison employee would have

actually written him a letter), cert. denied, ___ U.S. ___, 115 S. Ct. 641, 130

L. Ed. 2d 546 (1994).

-8-

emergency calls is speculative at best.4 Thus, the district court

did not abuse its discretion in concluding that this claim has no

arguable basis in law.5 

C 

Finally, Lacy contends that prison officials created

unconstitutional conditions of confinement by failing to control

the inmates' use of vulgar language and the volume at which they

play their radios and televisions. A prison condition violates the

Eighth Amendment only if it is so serious that it deprives

prisoners of the "`minimal civilized measure of life's

necessities,' as when it denies the prisoner some basic human

need." Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (quoting
 

6 Lacy alleges only that a reasonable person would deem the inmates'

use of vulgar language to be excessive noise which creates disturbance in the

living area.

 

7 Lacy stated in his complaint that:

Inmates living near Plaintiffs are regularly permitted to play their

personal radios at sound levels which completely infiltrate the cell

of Plaintiffs, and at volume levels which can be heard into the cell

of Plaintiffs which is located up to 50 or 60 feet away from the

cell(s) in which such personal radios of inmates are located; and at

volume levels which a reasonable person with ordinary hearing and

intelligence would consider loud, raucous, and substantially in

excess of low volume. The television(s) located in the dayroom on

the cellblock in which Plaintiffs are assigned to live are

constantly played at a loud, raucous volume level and can be clearly

heard in an excessive manner into the cell of Plaintiff which is

located a substantial distance from the dayroom, and at a level of

sound which a reasonable person would consider substantially above

a low volume of sound. As a direct result of the institutionallyviolative television and radio volume levels that exist on a daily

basis for up to sixteen hours, Plaintiffs are deprived of needed

rest and sleep, deprived of the ability to concentrate on reading

materials.

-9-

Harris v. Angelina County, Tex., 31 F.3d 331, 334 (5th Cir. 1994)

(quoting Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321,

2327, 115 L. Ed. 2d 271 (1991))). Because Lacy has not alleged

such a deprivation from the inmates' use of vulgar language,6 we

conclude that the district court did not abuse its discretion in

dismissing that claim. Lacy also alleges that the loud noise from

the radios and televisions deprived him of needed sleep, and the

ability to concentrate on reading materials.7 To the extent that

Lacy contends that the excessive noise violates prison rules, he

fails to allege a constitutional violation. See Hernandez v.

Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) ("[T]he mere failure

of the TDC officials to follow their regulations" is not a

constitutional violation.). 

Nor does Lacy's contention of excessive noise rise to the

level of an Eighth Amendment violation. Conditions of confinement
-10-

which do not lead to deprivations of essential food, medical care,

or sanitation do not amount to an Eighth Amendment violation. See

Rhodes v. Chapman, 452 U.S. 337, 348 (1981) ("The double celling

made necessary by the unanticipated increase in prison population

did not lead to deprivations of essential food, medical care, or

sanitation."). Lacy fails to allege any injury stemming from the

excessive noises or from any sleep deprivation. Accordingly, we

conclude that the district court did not abuse its discretion in

dismissing that claim. See Lunsford v. Bennett, 17 F.3d 1574, 1580

(7th Cir. 1994) (a few hours of periodic loud noises that merely

annoy, rather than injure, the prisoner does not state a

constitutional claim). 

III

For the foregoing reasons, we AFFIRM the district court's

judgment.