               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-31120
                         Summary Calendar



KEVIN PETERSON,

                                          Plaintiff-Appellant,

versus

JOANN PESHOFF, Individually and in
her official capacity; JOHNNY SMITH,
Individually and in his official capacity;
J. L. LACAZE, Individually and in his
official capacity; GERRY WILLIAMS, Individually
and in his official capacity; MATTHEW GOODIN,
Individually and in his official capacity;
PINDER, Officer, Individually and in her
official capacity; CHAPEL, Sergeant, Individually
and in his official capacity; JIM ROGERS,
Individually and in his official capacity,

                                          Defendants-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
              for the Western District of Louisiana
                        USDC No. 99-CV-381
                       - - - - - - - - - -

                            May 9, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

     Kevin Peterson, Louisiana prisoner # 81761, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action as

frivolous under 28 U.S.C. § 1915(e).   He contends that the


     *
        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that this opinion should not be published and is not precedent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. 99-31120
                                -2-

district court erred in not granting his motion for a default

judgment or his motion for the appointment of counsel, in

dismissing his claim for retaliation, and in failing to address

his claims of excessive force, unconstitutional conditions of

confinement for failing to provide outdoor exercise for

approximately 47 days, and the defendants’ conspiracy to support

the disciplinary charges against him with false evidence and to

have him punished and transferred to another facility for

pursuing grievances and assisting other inmates with legal work.

     The district court dismissed Peterson’s complaint as legally

frivolous, holding that Peterson had admitted that he was placed

in lockdown as punishment for performing legal services for other

inmates without first qualifying as a counsel substitute.      The

district court found that because there was a legitimate motive

for placing him in lockdown, he could not establish the causation

necessary to prove a retaliation claim.

     The district court did not address Peterson’s other

contentions which he asserted in a motion to amend his complaint.

Because the defendants were not served in this action, Peterson

was entitled to amend his complaint once as a matter of right

under FED. R. CIV. P. 15(a).   Therefore, the district court

should have addressed these issues.

     We review the dismissal of an action as frivolous for abuse

of discretion.   Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999).   The district court did not abuse its discretion in

dismissing Peterson’s retaliation claim.   To establish

retaliation, an inmate must allege the violation of a specific
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                                 -3-

constitutional right and show that but for the retaliatory motive

the complained of incident would not have happened.      Tighe v.

Wall, 100 F.3d 41, 42 (5th Cir. 1996).     There is no

constitutionally protected right to act as inmate counsel.

Id. at 42-43.    Therefore, the district court correctly denied

Peterson’s claim of retaliation based on his assisting other

inmates with legal work.

     Although the district court did not address his claim of

retaliation with respect to filing grievances, Peterson’s

allegations that he was threatened for filing grievances do not

state a claim.    See Robertson v. Plano City of Texas, 70 F.3d 21,

24 (5th Cir. 1995).    Further, to the extent that Peterson seeks

to challenge the disciplinary proceedings against him, such

relief is not properly sought under § 1983.     See Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994); Clarke v. Stalder, 154

F.3d 186, 189 (5th Cir. 1998) (en banc), cert. denied, 525 U.S.

1151 (1999).

     Peterson’s assertion that he was entitled to a default

judgment is specious because the defendants in this action had

not yet been served.   Likewise, his challenge to the district

court’s failure to appoint counsel lacks merit.    See Ulmer v.

Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); Cooper v. Sheriff,

Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).

     Peterson’s contention that he was deprived of outdoor

exercise for approximately 47 days is frivolous.    See Wilkinson

v. Maggio, 703 F.2d 909, 912 (5th Cir. 1983).    To the extent

Peterson may state a claim for deprivation of legal materials, he
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                                -4-

has not shown or alleged actual injury resulting from such

deprivation.   Therefore, such claim is without merit.   See Lewis

v. Casey, 518 U.S. 343, 351-52 (1996).

     However, Peterson’s assertion that correctional officers

used excessive force by wantonly and maliciously spraying him

with mace without provocation while he was confined in his cell

is not frivolous.   See Gomez v. Chandler, 163 F.3d 921, 923 (5th

Cir. 1999); Baldwin v. Stalder, 137 F.3d 836 (5th Cir. 1998).

Without intimating any view as to the merits of this claim, we

VACATE that portion of the judgment of the district court

dismissing Peterson’s claim for use of excessive force and remand

this issue for further proceedings; we AFFIRM the judgment of the

district court dismissing Peterson’s remaining claims.

     AFFIRMED IN PART; VACATED IN PART; REMANDED.
