                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 27, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-30982
                         Summary Calendar


RICKY JOSEPH ALEX,

                                    Plaintiff-Appellant,

versus

RICHARD L. STALDER; VENETIA MICHAEL; JERRY GOODWIN; RAY HANSON;
JAMIE FUSSELL; SERGEANT RIOS; TONY TOBIN; RICKY ANDREWS; CURT
WAINWRIGHT,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                        USDC No. 5:03-CV-30
                       --------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Ricky Joseph Alex, Louisiana prisoner # 98130, appeals from

the dismissal of his 42 U.S.C. § 1983 action as frivolous.        He

contends that the conditions of his confinement violated the

Eighth Amendment; that the conditions of his confinement violated

the Due Process Clause; and that the dismissal of his action

before discovery and service of the defendants violated the Due

Process Clause.



     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-30982
                                  -2-

     Alex’s appellate allegations regarding the taking of his

mattress from his cell during the daytime do not give rise to any

Eighth Amendment violation.     See Novak v. Beto, 453 F.2d 661,

665-66 (5th Cir. 1971).     Alex does not allege on appeal that he

was deprived of his mattress during sleeping hours; he thus has

abandoned any such claim.     See Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).    Moreover, the

serving of food loaf, without more, does not give rise to an

Eighth Amendment violation.     See Green v. Ferrell, 801 F.2d 765,

770 (5th Cir. 1986).

     Alex’s allegations regarding the cold temperatures in his

cell, however, do give rise to a nonfrivolous Eighth Amendment

contention.   He alleges that he was held in very cold conditions,

for an extended period in November and December, wearing nothing

but a paper gown during the daytime, and that he was ordered to

remain on the cold concrete whenever he attempted to sleep on the

warmer, metal bunk.    Alex has a right to protection from extreme

cold.   See Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir. 1999);

Beck v. Lynaugh, 842 F.2d 759, 760 (5th Cir. 1988).    Alex may not

recover compensatory damages absent a showing of a physical

injury, 42 U.S.C. § 1997e(e); Harper v. Showers, 174 F.3d 716,

719 (5th Cir. 1999).   However, he may be entitled to injunctive

relief, see Harper, 174 F.3d at 719, and nominal or punitive

damages.   See Williams v. Kaufman County, 352 F.3d 994, 1014-15

(5th Cir. 2003).   The dismissal of Alex’s claim regarding the
                          No. 05-30982
                               -3-

cold temperatures in his cell was erroneous.   See Harper, 174

F.3d at 718 & n.3.

     Finally, the district court did not err by dismissing Alex’s

action before discovery or service of the defendants.   See Ali v.

Higgs, 892 F.2d 438, 440 (5th Cir. 1990).

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
