                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT

                              _______________

                                No. 95-20033

                            (Summary Calendar)
                              _______________


                  ANTONIO M LACY and
                  DAVID ALLEN WALLIS,

                                          Plaintiffs-Appellants,

                  versus

                  JAMES A COLLINS,
                  Director, Texas Department
                  of Criminal Justice, Institutional
                  Division, ET AL.,

                                          Defendants-Appellees.


           _______________________________________________

             Appeal from the United States District Court
                  For the Southern District of Texas
                             CA H 94 2515
           _______________________________________________
                            August 8, 1995

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

      Antonio Lacy, an inmate of the Texas Department of Criminal

Justice's Institutional Division, appeals the district court's

dismissal, under 28 U.S.C. § 1915(d) (1988), of his pro se, in

forma pauperis civil rights suit.         We affirm.




     *
            Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
                                      I

     Antonio Lacy filed a complaint under 42 U.S.C. § 1983 (1988),

alleging that the conditions of his confinement violate his Eighth

Amendment rights. Specifically, Lacy alleges that prison officials

(1) allow HIV-positive inmates to masturbate and ejaculate in the

prison dayroom, contaminating the drinking fountain and other

surfaces;    (2)   allow   inmates   to    expose   themselves   to    female

employees,   potentially    discouraging     the    female   employees    from

responding to inmates' emergency calls; (3) allow inmates to use

vulgar and indecent language in speaking to prison employees and

other inmates; and (4) allow inmates to play televisions and radios

at high volume.       In his complaint, Lacy alleged that prison

officials do not enforce prison regulations designed to prevent

these problems, despite his and other inmates' complaints.               After

Lacy responded to an Order for a More Definite Statement, the

district court dismissed Lacy's complaint as frivolous under 28

U.S.C. § 1915(d), concluding that all four claims had no arguable

basis in law. Lacy appeals, arguing that the district court abused

its discretion in dismissing his complaint under § 1915(d).

                                     II

     A district court may dismiss an in forma pauperis complaint as

frivolous under § 1915(d) if it lacks an arguable basis in law or

fact.   Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827,

1831-32, 104 L. Ed. 2d 338 (1989); Eason v. Thaler, 14 F.3d 8, 10

(5th Cir. 1994).       "A complaint is legally frivolous if it is

premised on an `indisputably meritless legal theory.'"                Boyd v.


                                     -2-
Biggers, 31 F.3d 279, 281-82 (5th Cir. 1994) (quoting Neitzke, 490

U.S. at 327, 109 S. Ct. at 1833); see also Moore v. Mabus, 976 F.2d

268, 271 (5th Cir. 1992) (reversing § 1915(d) dismissal based on

"potentially erroneous legal conclusions" (citing Neitzke, 490 U.S.

at 328-30, 109 S. Ct. at 1833-34)).       We review a district court's

§ 1915(d) dismissal of an in forma pauperis complaint for abuse of

discretion.   Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728,

1733-34, 118 L. Ed. 2d 340 (1992).       We consider whether "(1) the

plaintiff is proceeding pro se, (2) the court inappropriately

resolved genuine issues of disputed fact, (3) the court applied

erroneous legal conclusions, (4) the court has provided a statement

of reasons which facilitates `intelligent appellate review,' and

(5) any factual frivolousness could have been remedied through a

more specific pleading."      Moore, 976 F.2d at 270 (quoting Denton,

504 U.S. at 34, 112 S. Ct. at 1734).

     "[T]he   treatment   a   prisoner   receives   in   prison   and   the

conditions under which he is confined are subject to scrutiny under

the Eighth Amendment." Helling v. McKinney, ___ U.S. ___, ___, 113

S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993).         "[A] prison official

violates the Eighth Amendment only when two requirements are met.

First, the deprivation alleged must be, objectively, `sufficiently

serious.'"    Farmer v. Brennan, ___ U.S. ___, ___, 114 S. Ct. 1970,

1977, 128 L. Ed. 2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S.

294, 298, 111 S. Ct. 2321, 2324, 115 L. Ed. 2d 271 (1991)).

Second, the prison official must have acted with "deliberate

indifference." Id. at ___, 114 S. Ct. at 1977 (quoting Wilson, 501


                                   -3-
U.S. at 302-303, 111 S. Ct. at 2326).

     [A] prison official can[] be found liable under the
     Eighth Amendment for denying an inmate humane conditions
     of confinement [if] the official knows of and disregards
     an excessive risk to inmate health and safety; the
     official must both be aware of facts from which the
     inference could be drawn that a substantial risk of
     serious harm exists, and he must also draw the inference.

Farmer, ___ U.S. at ___, 114 S. Ct. at 1979.              Whether a prison

official had the requisite knowledge "is a question of fact subject

to demonstration in the usual ways, including inferences from

circumstantial evidence, and a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that

the risk was obvious."     Id. at ___, 114 S. Ct. at 1981 (citations

omitted).

                                     A

     Lacy claims that prison officials created unconstitutional

conditions of confinement by allowing HIV-positive inmates to

masturbate and ejaculate in the prison dayroom, placing other

inmates at risk of contracting the HIV virus.            The district court

dismissed this claim on the grounds that prison administrators are

accorded wide discretion in running their institutions, including

decisions   regarding    measures    taken    to    protect   inmates     from

contracting communicable diseases, unless any failure to so protect

inmates represents an omission sufficiently harmful to evidence

deliberate indifference to serious medical needs.

     Lacy may show that prison officials have been deliberately

indifferent   to   the    risk    created    by     HIV-positive   inmates'

ejaculating   in   the   prison   dayroom    only   by   showing   that   the


                                    -4-
officials have been aware of the inmates' conduct and understand

that the conduct creates a substantial risk that other inmates will

contract the HIV virus.     See Farmer, ___ U.S. at ___, 114 S. Ct. at

1979.    Lacy explicitly alleged in the district court that he had

complained about the inmates' conduct to the prison officials.

However, in order to grant relief, we must infer that the risk

created by the inmates' alleged conduct is obvious.              See Farmer,

___ U.S. at ___, 114 S. Ct. at 1981 (holding that "a factfinder may

conclude that a prison official knew of a substantial risk from the

very fact that the risk was obvious"). There is no allegation that

any individual has contracted the HIV virus from the dayroom

environment, nor is there any basis for believing that the conduct

complained of, without more, creates a serious medical need for

official intervention.      We are not prepared to hold, as a matter of

law, that the alleged conduct creates an obvious risk that other

inmates will contract the HIV virus.

        In Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992), in reviewing

the § 1915(d) dismissal of a similar suit, we discussed prisoner

complaints of "serious constitutional violations related to the

`range    of   difficult,   AIDS-related       issues    that   confront   all

correctional officials, administrators, policymakers and inmates as

they attempt     to   grapple   with    the   problems   engendered   by   the

presence of HIV infection in our nation's prisons and jails.'" Id.

at 271 (quoting Harris v. Thigpen, 941 F.2d 1495, 1499 (11th Cir.




                                       -5-
1991)).1     We acknowledged that reviewing such claims does not

"involve the mere application of well-settled principles of law,"

and reversed the district court's § 1915(d) dismissal of the AIDs-

related claim.     Id.   However, alleging exposure to the HIV virus is

not   a    magic   incantation    that       relieves   a   litigant    from   the

established constructs of Eighth Amendment law.                   The facts as

alleged by Lacy do not implicate Eighth Amendment concerns.                    Lacy

neither identifies the serious medical needs that he believes

prison officials have been indifferent to, nor is the risk obvious.

                                         B

      Lacy also argues that prison authorities have violated the

Eighth Amendment by allowing inmates to expose themselves to female

prison employees,        which   he   claims    will    result   in    the   female

employees' not responding to inmates' emergency calls.                 As support

for his claim, Lacy contends that female employees have already

failed to perform routine security checks in his cell block.2                  The


      1
             Other circuits have also recognized these difficulties. See Gates
v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994) (deferring to prison policy of
excluding HIV infected inmates from food service for several reasons, such as
easing fears of inmates and as precaution against spreading infection when risks
are slight or unknown); Harris, 941 F.2d at 1519-20 (noting that "high risk
behavior occurs disproportionately in prison systems," requiring prison officials
to establish effective infection-control policies); Muhammad v. Carlson, 845 F.2d
175, 179 (8th Cir. 1988) (upholding constitutionality of prison policy requiring
segregation of HIV-infected inmates, in part because of court's "reluctance to
hinder prison officials' attempts to cope with the extraordinarily difficult
problems AIDS poses in a prison setting"), cert. denied, 489 U.S. 1068, 109 S.
Ct. 1346, 103 L. Ed. 2d 814 (1989).


      2
            We do not address whether the female employees' alleged failure to
conduct security checks is violative of the Eighth Amendment, because Lacy did
not bring this claim in his petition. "Although we liberally construe the briefs
of pro se appellants, we also require that arguments must be briefed to be
preserved." Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price
v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)) (citations
omitted).

                                       -6-
district court dismissed Lacy's claim as overly speculative.

      To have standing to bring his claim that prison authorities'

conduct has resulted in inmate conduct that might lead to allegedly

unconstitutional behavior on the part of female prison employees,

Lacy must show that he meets the standing requirements set forth in

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.

2130, 2136, 119 L. Ed. 2d 351 (1992):

      First, the plaintiff must have suffered an injury in
      fact))an invasion of a legally protected interest which
      is (a) concrete and particularized and (b) actual or
      imminent, not conjectural or hypothetical. Second, there
      must be a causal connection between the injury and the
      conduct complained of))the injury has to be fairly
      traceable to the challenged action of the defendant, and
      not the result of the independent action of some third
      party not before the court. Third, it must be likely, as
      opposed to merely speculative, that the injury will be
      redressed by a favorable decision.

Accord Ass'n for Retarded Citizens v. Dallas County Mental Health

& Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 243 (5th

Cir. 1994).      Lacy fails to meet these requirements because his

claim that female prison employees will refuse to answer emergency

calls is conjectural and hypothetical.3           To the extent that it is

not, the likelihood that requiring prison guards to increase their

enforcement    of   prison    regulations     against    inmates'     publicly

exposing themselves will affect female employees' response to




      3
            In order for a claim to be ripe, the plaintiff "must show that he
`has sustained or is immediately in danger of sustaining some direct injury' as
the result of the challenged official conduct and the injury or threat of injury
must be both `real and immediate,' not `conjectural' or `hypothetical.'" City
of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S. Ct. 1660, 1665, 75 L. Ed.
2d 675 (1983).

                                      -7-
emergency calls is speculative at best.4                Thus, the district court

did not abuse its discretion in concluding that this claim has no

arguable basis in law.5

                                       C

      Finally,     Lacy   contends         that      prison    officials       created

unconstitutional conditions of confinement by failing to control

the inmates' use of vulgar language and the volume at which they

play their radios and televisions. A prison condition violates the

Eighth   Amendment    only   if   it       is   so   serious    that    it    deprives

prisoners     of   the    "`minimal         civilized         measure    of     life's

necessities,' as when it denies the prisoner some basic human

need." Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (quoting


     4
            In order for Lacy to have standing to bring this claim under Article
III of the Constitution, the alleged injury "must be `fairly' traceable to the
challenged action, and relief from the injury must be `likely' to follow from a
favorable decision." Allen v. Wright, 468 U.S. 737, 751, 758, 104 S. Ct. 3315,
3324, 3328, 82 L. Ed. 2d 556 (1984) (holding that it was overly speculative as
to whether enforcement of Internal Revenue Service rules which prohibited tax
breaks to racially discriminatory private schools would prevent segregated
schools, because withdrawal of tax breaks may not convince these private schools
to change policies or parents to transfer their children to nonsegregated
schools); accord National Treasury Employees Union v. Department of Treasury, 25
F.3d 237, 241 (5th Cir. 1994); see also Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26, 43-44, 96 S. Ct. 1917, 1926-27, 48 L. Ed. 2d 450 (1976) (holding
that it was overly speculative to conclude that suspending tax benefits to
private hospital would force hospital to take on more indigent patients).
     5
            See Rocky v. King, 900 F.2d 864, 871 (5th Cir. 1990) (characterizing
inmate's § 1983 claim that prison officials' failure to provide toilet and hand-
washing facilities for inmates working in fields violated his Eighth Amendment
rights as possibly deficient for standing purposes because it was overly
speculative that inmate's glaucoma condition would improve to enable him to be
assigned field work, before remanding to district court for dismissal on other
grounds); Lamar v. Whiteside, 606 F.2d 88, 88 (5th Cir. 1979) (dismissing
inmate's claim, which contended that employees hired by prison's alleged
discriminatory hiring practices would discriminate against minority inmates and
cause psychological harm, as too speculative to enable inmate to have standing);
see also Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir.) (holding that pro se
inmate lacked standing to bring § 1983 claim because he could not show actual
injury from prison's policy of refusing to allow employees to write letters of
recommendation for inmates, as he did not show that prison employee would have
actually written him a letter), cert. denied, ___ U.S. ___, 115 S. Ct. 641, 130
L. Ed. 2d 546 (1994).

                                        -8-
Harris v. Angelina County, Tex., 31 F.3d 331, 334 (5th Cir. 1994)

(quoting Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321,

2327, 115 L. Ed. 2d 271 (1991))).            Because Lacy has not alleged

such a deprivation from the inmates' use of vulgar language,6 we

conclude that the district court did not abuse its discretion in

dismissing that claim.       Lacy also alleges that the loud noise from

the radios and televisions deprived him of needed sleep, and the

ability to concentrate on reading materials. 7            To the extent that

Lacy contends that the excessive noise violates prison rules, he

fails to allege a constitutional violation.                See Hernandez v.

Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) ("[T]he mere failure

of   the   TDC   officials   to   follow    their    regulations"   is   not   a

constitutional violation.).

      Nor does Lacy's contention of excessive noise rise to the

level of an Eighth Amendment violation.             Conditions of confinement


      6
            Lacy alleges only that a reasonable person would deem the inmates'
use of vulgar language to be excessive noise which creates disturbance in the
living area.
      7
            Lacy stated in his complaint that:

      Inmates living near Plaintiffs are regularly permitted to play their
      personal radios at sound levels which completely infiltrate the cell
      of Plaintiffs, and at volume levels which can be heard into the cell
      of Plaintiffs which is located up to 50 or 60 feet away from the
      cell(s) in which such personal radios of inmates are located; and at
      volume levels which a reasonable person with ordinary hearing and
      intelligence would consider loud, raucous, and substantially in
      excess of low volume. The television(s) located in the dayroom on
      the cellblock in which Plaintiffs are assigned to live are
      constantly played at a loud, raucous volume level and can be clearly
      heard in an excessive manner into the cell of Plaintiff which is
      located a substantial distance from the dayroom, and at a level of
      sound which a reasonable person would consider substantially above
      a low volume of sound. As a direct result of the institutionally-
      violative television and radio volume levels that exist on a daily
      basis for up to sixteen hours, Plaintiffs are deprived of needed
      rest and sleep, deprived of the ability to concentrate on reading
      materials.

                                      -9-
which do not lead to deprivations of essential food, medical care,

or sanitation do not amount to an Eighth Amendment violation.          See

Rhodes v. Chapman, 452 U.S. 337, 348 (1981) ("The double celling

made necessary by the unanticipated increase in prison population

did not lead to deprivations of essential food, medical care, or

sanitation.").    Lacy fails to allege any injury stemming from the

excessive noises or from any sleep deprivation.         Accordingly, we

conclude that the district court did not abuse its discretion in

dismissing that claim. See Lunsford v. Bennett, 17 F.3d 1574, 1580

(7th Cir. 1994) (a few hours of periodic loud noises that merely

annoy,   rather   than   injure,   the    prisoner   does   not   state   a

constitutional claim).

                                   III

     For the foregoing reasons, we AFFIRM the district court's

judgment.




                                   -10-
