     Case: 13-11402      Document: 00513005901         Page: 1    Date Filed: 04/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-11402
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 15, 2015
WILLIAM HENRY KRIEG,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

STEPHEN L. STEELE, Safe Prison Program Sergeant; TIMOTHY S.
HOOPER, Building Captain; RICHARD G. LEAL, Assistant Warden; EDDIE
L. WHEELER, Senior Warden,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 1:13-CV-52


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       William Henry Krieg, Texas prisoner # 1366694, appeals from the
dismissal as frivolous of his 42 U.S.C. § 1983 complaint alleging deliberate
indifference to his health and safety in contravention of the Eighth
Amendment.        “We review the dismissal of a complaint under 28 U.S.C.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 13-11402

§ 1915(e)(2)(B)(i) as frivolous for abuse discretion.” Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005) (footnote omitted).
      A claim is frivolous if it lacks any arguable basis in law or fact. Samford
v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). “A complaint lacks an arguable
basis in law if it is based on an indisputably meritless legal theory. . . . A
complaint lacks an arguable basis in fact if, after providing the plaintiff the
opportunity to present additional facts when necessary, the facts alleged are
clearly baseless.” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).
      A prison official is liable under the Eighth Amendment when, inter alia,
he is deliberately indifferent to a prisoner’s health and safety. Id. “To establish
deliberate indifference, the prisoner must show that the defendants (1) were
aware of facts from which an inference of an excessive risk to the prisoner’s
health or safety could be drawn and (2) that they actually drew an inference
that such potential for harm existed.” Id. at 407-08 (internal quotation marks
and citation omitted). Krieg has failed to allege facts supporting a finding of
deliberate indifference surrounding the sexual assault insofar as he testified
during his Spears 1 hearing that the appellees had no knowledge of it prior to
the Unit Classification Committee meeting.                    Additionally, he makes no
showing and does not even allege that the appellees were aware that he would
attempt suicide or drew the inference that such a possibility of harm existed
either because he was emotionally traumatized or because he wanted to
transfer to another unit. See Rogers, 709 F.3d at 407-08. To the extent that
Krieg argues that the appellees displayed deliberate indifference to his safety
and caused psychological injury by ordering him returned to the general
population after he had “snitched” on a member of the Crips gang, this
argument was raised for the first time in his appellate brief; the magistrate


      1   Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).


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                                 No. 13-11402

judge addressed Krieg’s allegations of deliberate indifference only as they
related to the sexual assault per his complaint and Spears testimony. “[A]n
argument not raised before the district court cannot be asserted for the first
time on appeal.” Sullo & Bobbitt, P.L.L.C. v. Milner, 765 F.3d 388, 393 (5th
Cir. 2014) (internal quotation marks and citation omitted).
      Insofar as Krieg argues that his rights under the Prison Rape
Elimination Act of 2003 (PREA), 42 U.S.C. § 15601, et seq., were violated, other
courts addressing this issue have found that the PREA does not establish a
private cause of action for allegations of prison rape. See Diamond v. Allen,
No. 7:14-CV-124, 2014 WL 6461730, at *4 (M.D. Ga. Nov. 17, 2014) (citing
cases); Amaker v. Fischer, No. 10–CV–0977, 2014 WL 4772202, at *14
(W.D.N.Y. Sept. 24, 2014) (holding that the PREA cannot support such a cause
of action by an inmate); Simmons v. Solozano, No. 3:14CV-P354- , 2014 WL
4627278, at *4 (W.D. Ky. Sept. 16, 2014) (holding that the PREA creates no
private right of action). Krieg has cited no case in support of his position;
therefore, any claim raised under the PREA is properly dismissed as frivolous.
      Krieg’s other claims either were never raised in the district court or were
raised only in a motion for reconsideration of the district court’s judgment.
“[G]enerally speaking, we will not consider an issue raised for the first time in
a Motion for Reconsideration.” Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501
F.3d 436, 442 (5th Cir. 2007) (internal quotation marks and citation omitted).
We therefore deem these claims to be waived.
      Krieg has also moved for appointment of counsel. Because there exist no
exceptional circumstances warranting such an appointment, his motion is
denied. See Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982).


AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.



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