Damond Mosley v. Dee Anderson , 425 F. App'x 343 ( 2011 )

Case: 10-11029 Document: 00511476909 Page: 1 Date Filed: 05/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2011
No. 10-11029
Summary Calendar Lyle W. Cayce
Clerk
DAMOND UNDRAY MOSLEY,
Plaintiff-Appellant
v.
SHERIFF DEE ANDERSON; CORPORAL J SCOTT; RENZALE TRIMBLE,
Inmate,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CV-621
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Damond Undray Mosley, Texas prisoner # 1606079, alleged under 42
U.S.C. § 1983 that prison officials contravened the Eighth Amendment because
they failed to prevent an attack against him by another inmate (Trimble). He
contended that prison officials were deliberately indifferent to his safety by
placing him in a cell with Trimble, whom officials could have anticipated would
severely injure him. The district court dismissed Mosley’s complaint both as
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-11029
frivolous and for failure to state a claim pursuant to 28 U.S.C. §§ 1915A(b)(1)
& 1915(e)(2)(B). Accordingly, our review is de novo. Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005).
Prison officials have a constitutional duty under the Eighth Amendment’s
prohibition against cruel and unusual punishment to protect prisoners from
violence at the hands of other prisoners. See Farmer v. Brennan, 511 U.S. 825,
832-33 (1994). A prison official can be found liable under the Eighth
Amendment only if he “knows of and disregards an excessive risk to inmate
health or safety”; accordingly, the prison official must be aware of facts from
which he could draw an inference of an excessive risk to an inmate’s health or
safety and drew an inference that such potential for harm existed. Id. at 837.
Mosley’s assertions do not support that the defendants were deliberately
indifferent for failing to protect him from an attack by Trimble. Mosley has not
set forth any bases upon which Anderson or Scott knew of and disregarded a risk
to Mosley’s safety by placing him in a cell with Trimble, i.e,. Mosley has not
alleged facts suggesting that Anderson or Scott knew that Trimble presented a
risk of harm and failed to protect Mosley from that known risk. See Farmer, 511
U.S. at 837. Mosley does not contend that he expressed concern to Anderson or
Scott –or any other prison official – about a potential attack by Trimble, and he
does not set forth any grounds upon which Anderson or Scott should have
anticipated that Trimble presented a risk.
Mosley furthermore has not alleged that Anderson or Scott was involved
in effectuating his placement with Trimble or in enabling the attack. He instead
alleges that a prison officials whom he did not name as defendants placed him
with Trimble and instigated the assault. To the extent that Mosley alleges that,
because of their supervisory positions, Anderson and Scott are responsible for
their subordinates, this claim is without merit. See Thompkins v. Belt, 828 F.2d
298, 303 (5th Cir. 1987). To the extent that prison officials were negligent for
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No. 10-11029
not preventing the assault, Mosley is not entitled to relief on this basis. Oliver
v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).
We need not consider whether there was a pattern of abuse at the facility
suggesting deliberate indifference in this case because Mosley did not raise this
claim in the district court. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass
Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). Likewise, to the extent
that Mosley seeks to assert for the first time on appeal that the defendants
denied him access to the courts, we need not review this claim. See id. Because
Mosley’s federal claims were properly dismissed, the district court did not err in
declining to exercise supplemental jurisdiction over his state-law claims against
inmate Trimble and dismissing those claims without prejudice. See Bass v.
Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999).
Mosley has not demonstrated that the district court erred in finding that
his complaint was frivolous and failed to state a claim on which relief could be
granted. Accordingly, the district court’s judgment should be affirmed.
The district court’s dismissal of Mosley’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Mosley is warned that if he accumulates three strikes, he may
not thereafter 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).
Mosley has filed a motion for appointment of counsel. Because he has not
shown exceptional circumstances, his motion for the appointment of counsel is
denied. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
SANCTION WARNING ISSUED.
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