Turner v. Cabana , 212 F. App'x 376 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2007
Charles R. Fulbruge III
Clerk
No. 05-61062
Summary Calendar
TIMOTHY TURNER,
Plaintiff-Appellant,
versus
DONALD CABANA, Superintendent of Mississippi Department of
Corrections, in his official and personal capacities; PAMELA
ROBINSON, Associate Warden, in her official and personal
capacities; HARRIS, Associate Warden, in his official and
personal capacities; MICHAEL WEEKS, Lieutenant, in his official
and personal capacities; K.T. CHASE, Correctional Officer, in his
official and personal capacities; TERRY STAPPLETON, Correctional
Officer, in his official and personal capacities; EMMITT
SPARKMAN, Deputy Commissioner, in his official and personal
capacities; CHRISTOPHER EPPS, Commissioner of Corrections, in his
official and personal capacities; J.J. STREETER, Warden, in his
official and personal capacities,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:05-CV-97
--------------------
Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Timothy Turner, former Mississippi prisoner # 38850, appeals
the dismissal with prejudice of his 42 U.S.C. § 1983 suit, which
alleged that the defendants violated his constitutional rights by
*
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this opinion should not be published and is not precedent except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.
failing to protect him from an attack by another inmate, Lester
Nash. Nash attacked Turner while they were in separate pens in the
prison yard.
Turner correctly argues that the district court erred in
failing to consider his timely filed objections to the magistrate
judge’s report. Moreover, because the objections were filed within
10 days of the final judgment, the objections should have been
construed by the district court as a FED. R. CIV. P. 59(e) motion.
See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994);
United States v. Gallardo, 915 F.2d 149, 150 n.2 (5th Cir. 1990).
Because Turner’s appeal is frivolous, we pretermit the
jurisdictional issue presented by the failure of the district court
to rule on the Rule 59(e) motion. See Fed. R. App.
P. 4(a)(4)(A)(iv); Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir.
1994); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
As found by the district court, the facts alleged by Turner
did not establish that any of the defendants had knowledge that
there was a specific risk of Nash attacking Turner during yard call
while they were in separate pens. See Farmer v. Brennan, 511 U.S.
825, 833, 837 (1994); Jacquez v. Procunier, 801 F.2d 789, 792 (5th
Cir. 1986). In fact, Turner conceded during the Spears** hearing,
that he himself did not anticipate the attack and that he knew of
no way that the defendants could have anticipated the attack.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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Although he stated in his objections to the magistrate judge’s
report that the defendants should have anticipated the attack
because he and Nash were in rival gangs, he did not explain how
such knowledge would have led the defendants to infer that there
was a substantial risk of harm to Turner by Nash while they were in
separate pens in the prison yard. See Farmer, 511 U.S. at 837.
Neither did Turner allege any facts that would establish that the
defendants knew or should have known that their failure to search
Nash on the day in question would pose a substantial risk of harm
to Turner while he and Nash were in separate pens. Id. The mere
failure to follow prison regulations and rules does not rise to the
level of a constitutional violation. See Hernandez v. Estelle,
788 F.2d 1154, 1158 (5th Cir. 1986).
Turner’s appeal is frivolous and is dismissed. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. Because
Turner was incarcerated at the time he filed the instant appeal,
the dismissal of this appeal as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 388 (5th Cir. 1996). Should Turner be returned to prison and
accumulate three strikes, he would not be permitted to proceed in
forma pauperis in any civil action or appeal filed while
incarcerated or detained in any facility unless he were under
imminent danger of serious physical injury. See § 1915(g). Turner
is also warned that, as a non-prisoner, any future frivolous
filings will subject him to sanctions.
3
APPEAL DISMISSED; SANCTION WARNING ISSUED.
4