Hinojosa v. King , 71 F. App'x 363 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10146
Summary Calendar
MIGUEL HINOJOSA,
Plaintiff-Appellant,
versus
NFN KING, Sergeant of Correctional Officers;
NFN CAMPOS, Correctional Officer III; NFN HASKINS,
Correctional Officer III; NFN ACOSTA, Sergeant of
Correctional Officers; NFN TOMSON, Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:02-CV-141-C
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Miguel Hinojosa, a Texas prisoner (# 840997), appeals from
the district court’s sua sponte dismissal of his 42 U.S.C. § 1983civil rights complaint as frivolous, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i), following a hearing pursuant to Spears
v. McCotter, 766 F.2d 179 (5th Cir. 1985). Hinojosa asserted
that Sergeant King caused a cellmate to physically assault him
by making it physically impossible for him, Hinojosa, to comply
with lockdown rules that required the inmates to kneel before
*
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that this opinion should not be published and is not precedent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. 03-10146
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receiving their sack lunches. He asserted that other defendants
were deliberately indifferent to his serious medical needs in the
aftermath of the assault.
We review for abuse of discretion a district court’s
dismissal of a prison inmate’s in forma pauperis complaint.
Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001) (citing
Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)). A
district court shall dismiss an IFP complaint at any time it
determines that the complaint is frivolous. 28 U.S.C.
§ 1915(e)(2)(B)(i). A complaint is “frivolous” if it lacks “‘an
arguable basis in law or fact.’” Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999) (quoting Talib v. Gilley, 138 F.3d 211, 213
(5th Cir. 1998)).
Hinojosa failed to allege facts sufficient to demonstrate
that Sergeant King was aware of facts from which the inference
could be drawn that there was a “substantial risk” that the
cellmate would assault Hinojosa. See Farmer v. Brennan, 511 U.S.
825, 837 (1994); Newton v. Black, 133 F.3d 301, 308 (5th Cir.
1998). Similarly, Hinojosa has not demonstrated that defendant
Officers Campos and Haskins and Sergeant Acosta were deliberately
indifferent to his serious medical needs following the assault.
See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976); Farmer,
511 U.S. at 837.
Hinojosa has abandoned his claims against Warden Tomson,
Major Cross, and an assistant warden, by failing to brief those
claims on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993); FED. R. APP. P. 28(a)(9).
No. 03-10146
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The judgment of the district court is AFFIRMED. Hinojosa’s
motion for appointment of counsel is DENIED, as he has not
demonstrated that “exceptional circumstances” exist. See Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
AFFIRMED; MOTION DENIED.