Williams v. Leonard ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2008
No. 07-40793
Conference Calendar Charles R. Fulbruge III
Clerk
GEORGE NEAL WILLIAMS
Plaintiff-Appellant
v.
GEAN LEONARD, Galveston County Jail Sheriff’s Department
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CV-282
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
George Neal Williams, Texas inmate # 1002786, appeals the dismissal of
his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim on
which relief can be granted. Williams alleged that he was subjected to cruel and
unusual punishment because he was the victim of a single instance of food
poisoning at the Galveston County jail. Because the district court dismissed the
complaint for failure to state a claim as well as for being frivolous, our review is
de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40793
To state a claim that prison officials violated his Eighth Amendment
rights, a prisoner must allege that officials acted with deliberate indifference to
his safety. Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002). Allegations of
negligent or unreasonable action are not sufficient to state a claim under the
Eighth Amendment. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995); see
Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996) (en banc). Williams has
not asserted that he had personal knowledge that Leonard knew about the
spoiled meat. Rather, he alleges that Leonard’s subordinates should have told
Leonard about the problem and that, if Leonard had been so informed, he was
negligent in failing to investigate the matter personally. These allegations do
not state a claim of deliberate indifference.
Alternatively, Williams asserts that, if Leonard was not informed about
the spoiled meat by his subordinates, he, as their superior, is liable for their
dereliction of duty. Supervisory officials are not liable for the actions of
subordinates on a theory of vicarious liability or respondeat superior.
Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).
The instant appeal is without arguable merit and is thus frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, the appeal
is dismissed. See 5TH CIR. R. 42.2.
The dismissals of the original suit and of this appeal count as strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). Williams is warned that if he accumulates three strikes, he will be
barred from proceeding in forma pauperis pursuant to § 1915 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
2