Sean Walker v. Jeffrey Travis , 532 F. App'x 451 ( 2013 )

Case: 11-30209 Document: 00512101489 Page: 1 Date Filed: 01/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2013
No. 11-30209
Summary Calendar Lyle W. Cayce
Clerk
SEAN C. WALKER,
Plaintiff-Appellant
v.
JEFFREY TRAVIS, Warden, Rayburn Correctional Center; BESSIE CARTER,
Director of Nursing at B.B. Sixty Rayburn Correctional Center; LOUISIANA
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Secretary,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-4361
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Sean C. Walker, Louisiana prisoner # 126912, appeals the dismissal of a
42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. §§ 1915(e), 1915A,
and 42 U.S.C. § 1997e(e). The complaint alleged that the defendants were
deliberately indifferent to his medical needs and to his safety and that they
failed to protect Walker from his cellmate, who attacked Walker as he entered
their cell wearing restraints.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30209
On appeal, Walker argues that the district court’s judgment is defective
because it does not dismiss his claims against two defendants. He further
argues that the district court erred in denying his motion for extension of time
to file objections to the magistrate judge’s report and recommendation. Finally,
Walker argues that the district court erred in denying his motion for a default
judgment against Bessie Carter.
Walker does not challenge the district court’s dismissal of his claims
against Jeffrey Travis, Carter, and James LeBlanc (the Secretary of the
Louisiana Department of Public Safety and Corrections) on the merits. Because
Walker has failed to brief the dismissal of these claims, they are deemed
abandoned. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); see also
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Walker complains that the district court erred by denying the motion for
extension of time to file objections to the magistrate judge’s report and
recommendation. Even if the district court erred by denying the motion, any
error was harmless because (1) the district court conducted a de novo review of
Walker’s case, (2) Walker did not address the dismissal of his claims on the
merits or indicate what objections he would have raised, and (3) the district
court was able to assess the merits of the case from the face of the motion. See
McGill v. Goff, 17 F.3d 729, 731-32 (5th Cir. 1994), overruled on other grounds
by Kansa Reinsurance Co. v. Congressional Mortg. Co., 20 F.3d 1362, 1373-74
(5th Cir. 1994); see also Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981).
Walker has not shown that the district court abused its discretion in
denying his motion for default judgment against Carter. See Ganther v. Ingle,
75 F.3d 207, 212 (5th Cir. 1996). Walker has provided no reason for being
granted a default judgment other than Carter’s failure to timely file an answer,
and a default judgment “should not be granted on the claim, without more, that
the defendant had failed to meet a procedural time requirement.” Lacy v. Sitel
Corp., 227 F.3d 290, 292 (5th Cir. 2000) (quotation omitted).
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Case: 11-30209 Document: 00512101489 Page: 3 Date Filed: 01/04/2013
No. 11-30209
Finally, the dismissal of the complaint in this case 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). Walker is cautioned that if he accumulates three strikes under
§ 1915(g), he will not be allowed 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).
AFFIRMED; SANCTION WARNING ISSUED.
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