Jennings v. Harvey ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20794
Conference Calendar
RICHARD W. JENNINGS,
Plaintiff-Appellant,
versus
JACQUELINE A. HARVEY; HELEN M. NEWMAN;
MARK H. RODRIQUEZ; WILLIAM D. BARTEE; RICHARD THALER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-3879
--------------------
December 11, 2002
Before JOLLY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:*
Richard Jennings, Texas inmate #820776, proceeding pro se
and in forma pauperis (“IFP”), appeals the district court’s
dismissal as frivolous pursuant to 28 U.S.C. § 1915(e)(2) of
his 42 U.S.C. § 1983 complaint. We review a 28 U.S.C. § 1915dismissal as frivolous for an abuse of discretion. Black
v. Warren, 134 F.3d 732, 733 (5th Cir. 1998).
*
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that this opinion should not be published and is not precedent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. 02-20794
-2-
To establish a constitutional violation based on the
conditions of confinement, Jennings must show that the defendants
acted with deliberate indifference. See Wilson v. Seiter,
501 U.S. 294, 297 (1991). He must show that the prison officials
were aware of facts from which an inference of an excessive risk
to his health or safety could be drawn and that the prison
officials actually drew an inference that such potential for harm
existed. See Farmer v. Brennan, 511 U.S. 825, 842 (1994).
Jennings has not established that defendants Harvey and
Newman acted with deliberate indifference in closing the
electronic cell door on his arm. Jennings admitted that the
officers were not looking and could not have seen whether anyone
was in the way of the closing cell doors. Jennings’ allegations
indicate that Harvey and Newman did not follow procedure and that
they may have acted negligently. These allegations do not
establish a constitutional violation under 42 U.S.C. § 1983.
Leffall v. Dallas Indep. School Dist., 28 F.3d 521, 525 (5th Cir.
1994); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).
Jennings also has not established that defendant Bartee was
aware of facts from which an inference of a risk to Jennings’
safety could be drawn and that Bartee actually drew an inference
that the potential for harm existed. Farmer, 511 U.S. at 847.
Jennings’ allegations against Shift Lieutenant Rodriquez and
Warden Thaler based on their positions as supervisors do not
establish a constitutional violation. Section 1983, 42 U.S.C.,
No. 02-20794
-3-
does not afford relief for supervisory or respondeat superior
liability. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir.
1987.
Jennings’ conclusional allegations are not sufficient to
demonstrate a conspiracy. See Wilson v. Budney, 976 F.2d 957,
958 (5th Cir. 1992); Russell v. Millsap, 781 F.2d 381, 383 (5th
Cir. 1985). Jennings has abandoned his claims concerning the
medical treatment that he received by failing to assert the
claims in this court. Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). The district court’s
judgment is AFFIRMED.