Fisher v. Butler

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40689
Conference Calendar
ANDREW BRADY FISHER,
Plaintiff-Appellant,
versus
THOMAS BUTLER, Classification Officer;
CHARLES FRIZZELL, Chief Classification Officer;
RICHARD D. TAYLOR, Texas Department of Criminal Justice, Inmate;
CHARLES WILLIAMSON, Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:01-CV-37
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December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Andrew Brady Fisher, Texas inmate # 654553, proceeding pro
se and in forma pauperis, appeals the dismissal as frivolous of
his 42 U.S.C. § 1983 complaint against fellow prisoner Richard D.
Taylor and prison officials Thomas Butler, Charles Frizzell, and
Charles Williamson. His claims stem from his assignment to the
same cell as Taylor, which culminated in an attack by his
cellmate in which Fisher suffered a head injury. Fisher claims
that the defendant prison officials failed to protect him against
*
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that this opinion should not be published and is not precedent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. 01-40689
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Taylor, who is alleged to have psychological problems and to have
assaulted numerous other inmates, facts alleged to have been
known by the prison officials. He claims that Frizzell’s failure
to properly supervise Butler resulted in his continued assignment
to Taylor’s cell.
Prison officials have a duty under the Eighth Amendment to
protect inmates from violence at the hands of other prisoners.
Farmer v. Brennan, 511 U.S. 825, 833 (1994). To establish a
failure-to-protect claim, an inmate must 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.” Neals v. Norwood, 59
F.3d 530, 533 (5th Cir. 1995). There are two requirements for a
constitutional violation to occur. Woods v. Edwards, 51 F.3d
577, 581 (5th Cir. 1995). First, the condition “must be so
serious as to deprive prisoners of the minimal civilized measure
of life’s necessities, as when it denies the prisoner some basic
human need.” Id. (internal punctuation and citation omitted).
Second, the prison official must have been “deliberately
indifferent to inmate health or safety.” Id. (internal
punctuation and citation omitted). A prison official acts with
deliberate indifference if he “knows of and disregards an
excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837.
No. 01-40689
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Fisher’s allegations, which are accepted as true, do not
provide an arguable basis for his failure-to-protect claim.
Fisher, who related in his brief to this court that he stands six
feet, four inches tall and weighs 330 pounds, stated in his
objections to the magistrate judge’s report that “[t]he [prison
official] Defendants assumed because of Plaintiff’s size that he
wasn’t in danger of being assaulted by [Taylor].” This
allegation is simply incompatible with a finding that the
defendant prison officials were deliberately indifferent toward
the risk faced by Fisher. Moreover, Fisher’s remaining
allegations fail to provide an arguable basis for the claim that
the officials were aware that he was under a substantial risk of
harm prior to the incident. The district court did not abuse its
discretion in dismissing the failure-to-protect claim as
frivolous.
Nor did the district court err in dismissing Fisher’s
retaliation claim as frivolous. A prisoner asserting a
retaliation claim must establish (1) a specific constitutional
right, (2) the defendant's intent to retaliate against the
prisoner for his or her exercise of that right, (3) a retaliatory
adverse act, and (4) causation. McDonald v. Stewart, 132 F.3d
225, 231 (5th Cir. 1998). Fisher does not allege that he filed
grievances or made complaints to prison officials prior to his
assignment as Taylor’s cellmate, and thus he fails to furnish an
arguable basis for causation. Further, inasmuch as the defendant
prison officials foresaw no risk, Fisher’s allegations supply no
No. 01-40689
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arguable basis for a finding that the officials intended to
retaliate against him.
Fisher has not briefed any argument challenging the
dismissal of his claim against his fellow inmate Taylor, and the
issue is therefore waived. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
The district court’s judgment is in all respects AFFIRMED.
The district court’s dismissal of Fisher’s action as frivolous
counts as a "strike" for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Fisher is warned that if he accumulates three "strikes" pursuant
to 28 U.S.C. § 1915(g), 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).
AFFIRMED; STRIKE WARNING ISSUED.