               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-40320
                        Conference Calendar



PAUL HAROLD RICE,

                                         Petitioner-Appellant,

versus

DAVID LINE,

                                         Defendant-Appellee.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                         USDC No. 3:00-CV-45
                        --------------------
                          December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Paul Harold Rice, Texas prisoner # 900007, appeals the

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

frivolous and for failure to state a claim.     Rice, however, does

not argue that the district court’s decision was error, and,

instead, he moves this court to treat his 42 U.S.C. § 1983

complaint as a 28 U.S.C. § 2254 petition.     Because he does not

argue that the district court’s decision was error, he has waived

that issue on appeal.   See Yohey v. Collins, 985 F.2d 222, 225

(5th Cir. 1993).


     *
        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that this opinion should not be published and is not precedent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. 01-40320
                               -2-

     This appeal is without arguable merit and is thus frivolous.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).   Because

the appeal is frivolous, it is dismissed.   5th Cir. R. 42.2.

     APPEAL DISMISSED; Motion to treat civil rights complaint as

federal habeas petition DENIED.
