Randy Shaw v. Correctional Officer Brelan

Case: 17-30699 Document: 00514558085 Page: 1 Date Filed: 07/17/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-30699 FILED
Summary Calendar July 17, 2018
Lyle W. Cayce
Clerk
RANDY TRACY SHAW,
Plaintiff-Appellant
v.
CORRECTIONAL OFFICER BRELAN; LIEUTENANT COGGINS;
CORRECTIONAL OFFICER CAIN; B. VALLE, Disciplinary Officer;
CAPTAIN BARLETT; M.D. CARVAJAL, Former Warden,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:16-CV-1777
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Randy Tracy Shaw, federal prisoner # 11253-007, appeals the denial and
dismissal of his Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), complaint as frivolous and for failure to state a
claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
Shaw complains that the district court did not consider his claims of failure to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 17-30699
protect, negligence, and deliberate indifference to his serious medical needs,
all of which were related to an assault Shaw suffered at the hands of other
inmates. He contends that the defendants failed to protect him from the attack
and that their negligence led to the attack. Shaw asserts that he was injured
in the attack and did not receive medical care until one hour and 45 minutes
after the attack. He also argues that the court erred in failing to grant his
request for an injunction to preserve the video recording of the assault.
We may affirm on any basis supported by the record. Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999). Our review of a dismissal under
§ 1915(e)(2)(B) and § 1915A(b)(1) as frivolous and for failure to state a claim is
de novo, and we apply the same standard as governs a dismissal under Federal
Rule of Civil Procedure 12(b)(6). Alderson v. Concordia Par. Corr. Facility, 848
F.3d 415, 419 (5th Cir. 2017). A complaint fails to state a claim for purposes
of Rule 12(b)(6) when it does not contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Shaw’s claims of failure to protect, negligence, and deliberate
indifference to his serious medical needs all rested on indisputably meritless
legal theories. See Neitzke v. Williams, 490 U.S. 319, 327 (1989). Additionally,
Shaw fails to show that the district court should have granted him injunctive
relief in the form of preserving a video recording of the incident because he has
not established a substantial likelihood of success on the merits. See Black
Fire Fighters Ass’n v. City of Dallas, 905 F.2d 63, 65 (5th Cir. 1990).
Shaw fails to adequately brief the district court’s reasons for the
dismissal of his claims of retaliation and his claim of failure to train.
Therefore, they are abandoned. Brinkmann v. Dallas County Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
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No. 17-30699
Accordingly, the judgment of the district court is AFFIRMED. The
district court’s dismissal counts as a “strike” for purposes of 28 U.S.C.
§ 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Shaw is WARNED that if
he accumulates three strikes under § 1915(g), he will not be able to 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 § 1915(g).
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