Henderson v. Mid States Svc Inc ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 28, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-11117
Summary Calendar
DAVID JAMES HENDERSON,
Plaintiff-Appellant,
versus
MID STATES SERVICES, INC.;
TARRANT COUNTY JAIL MEDICAL STAFF;
O. JOHNSON, Lieutenant,
Tarrant County Sheriff Department,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CV-751-Y
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
David James Henderson, Texas prisoner number 0346315, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 suit as
frivolous and for failure to state a claim. Henderson also moves
this court for the appointment of counsel. His motion for the
appointment of counsel is DENIED.
*
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this opinion should not be published and is not precedent except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. 02-11117
-2-
“To plead a constitutional claim for relief under § 1983, [a
plaintiff must] allege a violation of a right secured . . . by the
Constitution or laws of the United States and a violation of that
right by one or more state actors.” Johnson v. Dallas Indep. Sch.
Dist., 38 F.3d 198, 200 (5th Cir. 1994). We review the district
court’s dismissal of Henderson’s suit under the de novo standard.
Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). Henderson
has not shown that the district court erred in dismissing his
claims against defendant Mid States Services, Inc., as he has not
shown that this defendant violated his constitutional rights.
Henderson likewise has not shown that the district court erred
in dismissing his claims against the Medical Department of the
Tarrant County Jail. He has not shown that the Medical Department
is a legal entity amenable to suit, nor has he shown that his
alleged injuries were due to any county policy or custom. See
Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978);
Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991).
Finally, Henderson has not shown that defendant Johnson violated
his Eighth Amendment rights, as he has not shown that Johnson was
aware of a substantial risk to his health and ignored this risk.
See Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Henderson has not shown that the district court erred in
dismissing his § 1983 suit as frivolous and for failure to state a
claim. Accordingly, his appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
No. 02-11117
-3-
1983). This dismissal of a frivolous appeal constitutes one strike
against Henderson for purposes of 28 U.S.C. § 1915(g), as does the
district court’s dismissal of his complaint. See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). If one other district
court action or appeal filed by Henderson is dismissed as
frivolous, he will be barred from bringing a civil action or appeal
as a prisoner proceeding in forma pauperis unless he is under
imminent danger of serious physical injury. See 28 U.S.C. §
1915(g).
MOTION FOR APPOINTMENT OF COUNSEL DENIED. APPEAL DISMISSED AS
FRIVOLOUS. 5TH CIR. R. 42.2. SANCTIONS WARNING ISSUED.