Guerra v. Thaler ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-21313
Conference Calendar
JUAN ANDRES GUERRA,
Plaintiff-Appellant,
versus
RICHARD THALER; ROBERT GAYLOR;
BRIAN MARSHALL; PRISCILLA DALY;
KELLIE WARD,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-3231
--------------------
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Andres Guerra, Texas prisoner number 1016762, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 civil
rights suit for failure to state a claim upon which relief could
be granted pursuant to 28 U.S.C. § 1915(e)(2)(ii). We review the
district court’s dismissal of Guerra’s suit under the de novo
standard. Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
*
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that this opinion should not be published and is not precedent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. 02-21313
-2-
“To plead a constitutional claim for relief under § 1983, [a
plaintiff must] allege a violation of a right secured . . . by
the Constitution or laws of the United States and a violation of
that right by one or more state actors.” Johnson v. Dallas
Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). To set
forth a failure-to-protect claim, the inmate must show both that
the conditions of his incarceration posed “a substantial risk of
serious harm” and that prison officials exhibited deliberate
indifference to his need for protection. Newton v. Black,
133 F.3d 301, 308 (5th Cir. 1998).
Guerra has not shown that the defendants acted with
deliberate indifference for his safety, which is an element of a
42 U.S.C. § 1983 claim for failure to protect. He thus has not
shown that the district court erred in dismissing his complaint
for failure to state a claim. Accordingly, the judgment of the
district court is AFFIRMED.