Foreman v. Tomblin ( 2003 )


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  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS        September 8, 2003
    FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
    Clerk
    No. 03-40570
    Summary Calendar
    PERCY FOREMAN,
    Plaintiff-Appellant,
    versus
    M.W. TOMBLIN, Captain; UNIDENTIFIED BLEDSOE;
    UNIDENTIFIED SMITH,
    Defendants-Appellees.
    -----------------------------------------------------------------
    PERCY FOREMAN,
    Plaintiff-Appellant,
    versus
    M. TOMBLIN, Disciplinary Captain; UNIDENTIFIED BLEDSOE,
    Correctional Officer III; UNIDENTIFIED SMITH, Correctional
    Officer III; JANE DOE, Correctional Officer III; TEXAS
    DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 9:02-CV-52
    USDC No. 9:02-CV-339
    --------------------
    Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    *
    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    that this opinion should not be published and is not precedent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. 03-40570
    -2-
    Percy Foreman, Texas inmate # 926545, proceeding pro se and
    in forma pauperis (“IFP”), appeals the dismissal as frivolous and
    for failure to state a claim of his 42 U.S.C. § 1983 complaint.
    Foreman contends that Officer Bledsoe failed to protect him from
    injury inflicted by another inmate.    He asserts that Officer
    Smith delayed in providing medical treatment and that he was
    denied necessary medical treatment and medication.    In addition,
    Foreman contends that Officer Smith allowed inmates to enter his
    cell and take his personal property.
    Review of the 28 U.S.C. § 1915A dismissal of a prisoner’s
    civil rights complaint is de novo.     Ruiz v. United States, 
    160 F.3d 273
    , 275 (5th Cir. 1998).   We assume that the plaintiff’s
    factual allegations are true, and we uphold the dismissal “only
    if it appears that no relief could be granted under any set of
    facts that could be proven consistent with the allegations.”
    Bradley v. Puckett, 
    157 F.3d 1022
    , 1025 (5th Cir. 1998).
    A failure-to-protect claim requires a prisoner to show that
    he was “‘incarcerated under conditions posing a substantial risk
    of serious harm, and that prison officials were deliberately
    indifferent to his need for protection.’”     Newton v. Black, 
    133 F.3d 301
    , 308 (5th Cir. 1998).   A prison official acts with
    deliberate indifference if he is “aware of facts from which the
    inference could be drawn that a substantial risk of serious harm
    exists,” and if he draws the inference.     
    Newton, 133 F.3d at 308
    .
    No. 03-40570
    -3-
    Foreman’s complaints, his testimony at the Spears v.
    McCotter, 
    766 F.2d 179
    (5th Cir. 1985) hearing, and his
    assertions in this court do not state a failure-to-protect claim.
    Foreman’s allegations establish, at most, that Officer Bledsoe
    should have assumed that the inmate was going to hurt Foreman.
    Foreman has not shown that Officer Bledsoe was aware of facts
    from which he could have drawn the inference that the inmate was
    a threat of substantial harm to Foreman’s safety and that Bledsoe
    drew the inference.   See 
    Newton, 133 F.3d at 308
    .
    Foreman’s medical treatment claims establish Foreman’s
    disagreement with the care that he received but do not state a
    claim of constitutional dimension based on deliberate
    indifference to serious medical needs.    Varnado v. Lynaugh, 
    920 F.2d 320
    , 321 (5th Cir. 1991).
    Claims of negligent or intentional deprivation of property
    by state officials do not rise to the level of due process
    violations if state law provides an adequate post-deprivation
    remedy.   Hudson v. Palmer, 
    468 U.S. 517
    , 533-34 (1984); Murphy v.
    Collins, 
    26 F.3d 541
    , 543-44 (5th Cir. 1994).   Texas provides an
    adequate post deprivation remedy.   
    Murphy, 26 F.3d at 543-44
    .
    Foreman has not stated a claim based on the loss of his property.
    Foreman has abandoned his claims concerning the denial of
    due process by failing to assert them in this court.    Yohey v.
    Collins, 
    985 F.2d 222
    , 225 (5th Cir. 1993).
    No. 03-40570
    -4-
    Foreman has not shown that the magistrate judge abused
    discretion by denying his motion to withdraw consent to the
    magistrate judge’s disposition of his case.    Valid consent to
    trial before a magistrate judge waives the right to trial before
    an Article III judge, and such consent will be withdrawn only for
    good cause.    Carter v. Sea Land Services, Inc., 
    816 F.2d 1018
    ,
    1021 (5th Cir. 1987).     Foreman has not alleged prejudice as a
    result of the magistrate judge’s disposition of his case.    He has
    not shown good cause for the withdrawal of his consent.     See 
    id. Foreman has
    not demonstrated that exceptional circumstances
    warranted the appointment of counsel in his case.     See Ulmer v.
    Chancellor, 
    691 F.2d 209
    , 212 (5th Cir. 1982).     Foreman’s claims
    are not unusually complex, and he has demonstrated the ability to
    file motions and present his case adequately.     The denial of
    appointed counsel was not an abuse of discretion.     
    Ulmer, 691 F.2d at 212
    .
    Accordingly, the judgment is AFFIRMED.    The dismissal of
    Foreman’s complaint counts as a strike for purposes of 28 U.S.C.
    § 1915(g).     See Adepegba v. Hammons, 
    103 F.3d 383
    , 387 (5th Cir.
    1996).   Foreman is cautioned that once he accumulates three
    strikes, he may not proceed IFP 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).
    AFFIRMED; SANCTION WARNING ISSUED.