                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 16, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-10536
                         Summary Calendar



                            OSCAR RUIZ,

                                              Plaintiff-Appellant,

                              versus

 JOSEPH K. PRICE; STEVEN N. RICH; CAROLYN R. CORREA; GUSTAVO D.
   VAQUERA; JIMMY O. BOWMAN; CHARLES R. ELLINGBURG; G. DAVIS;
 MARISCAL Q.; DARRYL E. GLENN; BRIAN RODEEN; JANE M. COCKERHAM,
 Texas Department Criminal Justice-Institutional Division Office
    of Ombudsman; CRAIG FLOWERS, Texas Department of Criminal
       Justice-Institutional Division Office of Ombudsman;
  ADMINISTRATION; GRIEVANCE DEPARTMENT; TEXAS BOARD OF CRIMINAL
 JUSTICE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; JANIE COCKRELL;
  JOHN GILBERT; JAY LOWE; R. DUFFY; JOHN DOE; KEITH CLENDENNEN;
              UNITED STATES POSTAL SERVICE; JOWERS,

                                             Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 2:01-CV-00378
                       --------------------

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:1

     Oscar Ruiz, Texas prisoner # 766772, appeals the dismissal of

his 42 U.S.C. § 1983 suit for failure to state a claim, as

frivolous, with prejudice to being asserted again until Heck v.

     1
        Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
Humphrey, 512 U.S. 477, 487 (1994), conditions are met, and for

failure to exhaust administrative remedies.     Ruiz argues that the

defendants violated his Eighth Amendment rights by failing to

protect him from assault when rival gangs were sent to recreate

together.     He also argues that he may sue the Texas Board of

Criminal Justice (TBCJ) and the Texas Department of Criminal

Justice (TDCJ) for making unconstitutional policies because he is

not asking for money damages.     He argues that he did not suffer

substantial injury only because he was able to defend himself

better than other prisoners.     Ruiz argues that he was unable to

exhaust many of his claims because prison policy allows a prisoner

to file only one grievance per week.    Finally, he argues that the

Heck rule should not have been applied because he did not complain

that he was wrongfully disciplined.

     Ruiz has not addressed his claims against Nancy Jowers, the

Postal   Service,   Craig   Flowers,   Jane   Cockerham,   and   Keith

Clendennen.   He, therefore, has waived these arguments.    See Cinel

v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).

     The TDCJ and the TBCJ are instrumentalities of the State and

are immune from suit under the Eleventh Amendment.     See Harris v.

Angelina County, Tex., 31 F.3d 331, 337 n.7 (5th Cir. 1994); see In

re Clements, 881 F.2d 145, 150 (5th Cir. 1989); see also Loya v.

Texas Dept. of Corrections, 878 F.2d 860, 861-62 (5th Cir. 1989).

It is immaterial that Ruiz is not suing TDCJ and TBCJ for money



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damages.   See Will v. Michigan Dept. of State Police, 491 U.S. 58,

66 (1989).

     Ruiz alleged that the unconstitutional policy was implemented

by TBCJ, not by any of the other defendants.                Therefore, the

supervisory officials, Janie Cockrell, John Gilbert, Jay Lowe,

Joseph Price, Steven Rich, Brian Rodeen, and John Doe, may be held

liable   only    if   they   participated   in   the    acts   causing   the

constitutional deprivation.      See Baker v. Putnal, 75 F.3d 190, 199

(5th Cir. 1996).      Ruiz did not allege that these defendants were

present during the prisoner altercation. Consequently, Ruiz failed

to state a claim upon which relief could be granted as to these

defendants.     See id.

     Ruiz alleged that Charles Ellingburg, R. Duffy, Jimmy Bowman,

Carolyn Correa, Gustavo Vaquera, G. Davis, and Darryl Glenn were

present immediately before and/or during the gang fight, that each

had knowledge of the ongoing gang war, and that they either

participated in placing the two gangs together or did nothing to

stop the two gangs from coming together.         We do not need to decide

whether Ruiz’s allegations state a non-frivolous claim upon which

relief may be granted against Ellingburg, Duffy, Bowman, Correa,

Vaquera, Davis, and Glenn because Ruiz has not shown that he is

entitled to the relief that he requests.               Ruiz cannot receive

damages as relief against these defendants because he did not

allege a more-than-de-minimus injury.        See 42 U.S.C.     § 1997e(e);

Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).            Moreover,

                                     3
Ruiz has not shown entitlement to his requested injunctive relief

against these defendants, i.e., their demotion.        See Haitian

Refugee Ctr. v. Smith, 676 F.2d 1023, 1041 (5th Cir. Unit B 1982);

see also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977).

The district court’s judgment is AFFIRMED.




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