Garcia v. Smith , 208 F. App'x 351 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 8, 2006
Charles R. Fulbruge III
No. 05-20469 Clerk
Summary Calendar
GUSTAVO LARA GARCIA,
Plaintiff-Appellant,
versus
WARDEN SMITH; SERGEANT OLIVAREZ;
UNKNOWN, Assistant to Sergeant Olivarez;
UNKNOWN, Floor Boss; INMATE ANDRES SEGURA; MARK JONES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
No. 4:04-CV-152
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Texas inmate Gustavo Garcia appeals the dismissal of his
42 U.S.C. § 1983 civil rights action against Warden Mark Jones,
prison guard Sgt. Daniel Olivarez, and others, in which he alleges
that the defendants failed to protect him from being attacked by
another inmate. The district court dismissed the action pursuant
*
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opinion should not be published and is not precedent except under the limited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.
to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim on which
relief could be granted.
After de novo review of Garcia’s complaint, and accepting his
allegations as true, we conclude that the actions of Jones and Oli-
varez establish that they were not deliberately indifferent to Gar-
cia’s constitutional rights. See Farmer v. Brennan, 511 U.S. 511U.S. 825, 834-35, 844 (1994). Garcia does not challenge the dis-
missal of the other defendants, so any such claims are abandoned.
See Brinkman v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).
Garcia also argues that the district court erred by denying
his motions for a default judgment, discovery, and appointment of
counsel. No relief is warranted on these grounds. See Lewis v.
Lynn, 236 F.3d 766, 767 (5th Cir. 2001); Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982). The judgment is AFFIRMED.
The dismissal of Garcia’s action pursuant to § 1915(e)(2)(B)
counts as his second strike for purposes of the three strikes pro-
vision, § 1915(g), because a previous action brought by him was
dismissed under § 1915(e)(2)(B). See Garcia v. Espinosa,
No. 7:01-CV-285 (S.D. Tex. Sept. 21, 2004); Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Garcia is WARNED that if he
accumulates three strikes, he will be barred from proceeding in
forma pauperis in any future civil action or appeal filed while he
is incarcerated or detained in any facility, unless he is under im-
minent danger of serious physical injury. See § 1915(g).
2