Hurley v. Buentello ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40730
Summary Calendar
FREDDY HURLEY,
Plaintiff-Appellant,
versus
SALVADOR BUENTELLO; WAYNE SCOTT; GARY JOHNSON; ROY GARCIA;
ERIC BURSE,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CV-384
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March 20, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Freddy Hurley, Texas prisoner # 453088, appealed the
district court’s grant of summary judgment for the defendants in
his 42 U.S.C. § 1983 action alleging a failure to protect him
from attack by another inmate on May 11, 2000.
Hurley argues that he was given no notice or opportunity to
respond to the defendants’ motion for summary judgment. He
contends that counsel was appointed for jury selection and trial
*
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that this opinion should not be published and is not precedent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.
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only, and that he personally should have been served with the
motion for summary judgment and have been allowed to respond
himself. Hurley’s appointed counsel was served with the
defendants’ motion for summary judgment per the district court’s
order of July 17, 2001, and counsel filed a response on behalf of
Hurley. Hurley was not deprived of notice or an opportunity to
respond to the defendants’ motion for summary judgment.
Hurley argues that the district court erred by granting
summary judgment because the record showed a genuine issue of
material fact. He takes issue with the district court’s
statement that he had not demonstrated that he informed the
defendants of the threat of an attack by another inmate at
Coffield Unit. He contends that he informed them by numerous
letters immediately preceding the attack. He also criticizes the
district court’s conclusion that he had failed to show that the
defendants had disregarded the risk to his health or safety due
to their efforts to keep him from coming in contact with other
inmates.
Hurley misinterprets the district court’s finding concerning
the threat of attack. The district court was speaking in terms
of a lack of knowledge by the defendants that this particular
attack on May 11 was threatened or imminent. Hurley is correct
that he had made the defendants aware generally of a hit on his
life. The defendants managed to protect him from this
generalized threat from 1995 to May 11, 2000. In response to
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Hurley’s complaint of life endangerment made on May 1, the
defendants began an investigation on May 2, held a life
endangerment hearing, and determined on May 9 or 10 that he
should be moved back to J wing, even though, according to their
interview with him, he did not identify any specific verbal
threats made against him. Before he could actually be physically
moved, the attack occurred on May 11. Hurley is correct that he
had made the defendants aware of a general threat posed to his
life from being housed on H wing, which he alleged housed many
gang members, but there is nothing in the record to show that he
informed the defendants of a specific and imminent threat.
Despite the lack of a specific threat, the defendants
investigated, held a life endangerment hearing, and determined
that Hurley should be moved back to J wing as he requested.
Unfortunately, while being escorted by a guard to the shower on
May 11, another inmate managed to shoot Hurley with a blow dart
through the food tray slot, before the defendants could arrange
for his move.
There is no genuine issue of material fact to be resolved by
a trial. Hurley is challenging the district court’s legal
conclusion that the facts did not establish deliberate
indifference. The facts in this record do not establish
deliberate indifference on the part of the defendants. Farmer v.
Brennan, 511 U.S. 825, 833 (1994)(Not every injury "by one
prisoner at the hands of another . . . translates into
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constitutional liability for prison officials responsible for the
victim's safety.") The defendants responded to Hurley’s
complaints, investigated, and gave him the relief requested.
They cannot be said to have been deliberately indifferent because
they delayed his move by one or two days. The district court did
not err in granting summary judgment for the defendants.
Hurley argues that Johnson, Scott, and Buentello were
collaterally estopped by Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D.
Tex. 1999) from relitigating that they were not responsible for
established unconstitutional prison procedures which led to his
injuries. He does not identify what these policies and
procedures are or how they led to his injury. The only specific
policy mentioned by Hurley in the district court was the policy
of having a single female guard escort him. The use of a single
guard to escort a prisoner, in itself, does not amount to a
constitutional violation. The implementation of a policy of
using male or multiple guards would not have protected Hurley
from the risk of what occurred here, being shot by a dart through
a food slot. The district court did not err in granting summary
judgment in favor of the supervisory defendants.
Hurley was advised in Hurley v. Polunsky, No. 00-40404 (5th
Cir. Sept. 28, 2000) that the district court’s dismissal as
frivolous and this court’s dismissal of his appeal as frivolous
in that case constituted two strikes under 28 U.S.C. § 1915(g).
This appeal is also dismissed as frivolous based on the
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duplication of many of the claims raised and dismissed in
Polunsky, and the lack of factual support for his claim of
deliberate indifference. 5TH CIR. R. 42.2. Hurley is advised
that the dismissal of this appeal as frivolous counts as his
third strike under 28 U.S.C. § 1915(g) and that he may not
proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(G) BAR
IMPOSED.