Donald Burling v. Porsche Simon, et al

Filing

UNPUBLISHED OPINION FILED. [10-40047 Affirmed in Part, Vacated in Part, and Remanded] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 01/19/2011 [10-40047]

Donald Burling v. Porsche : 10-40047 Case Simon, et al

Document: 00511334637 Page: 1 Date Filed: 12/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40047 S u m m a r y Calendar December 29, 2010 Lyle W. Cayce Clerk

D O N A L D L. BURLING, P la in t if f -A p p e lla n t v. P O R S C H E SIMON, Sergeant; UNIDENTIFIED PARTIES, Two Unknown Black F e m a le Correctional Officers, Stiles Unit; DAVID DOUGHTY; HARLEAN H O W A R D ; L. MITCHELL, Officer; LATICIA JONES, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:05-CV-597

B e fo r e JONES, Chief Judge and JOLLY and SOUTHWICK, Circuit Judges. PER CURIAM:* D o n a ld L. Burling, Texas prisoner # 1026184, appeals the district court's s u m m a r y judgment dismissal of his 42 U.S.C. § 1983 complaint against three c o r r e c t io n a l officers and the warden for failure protect him from an assault by a n o t h e r inmate. The district court dismissed the claims against Defendants H a r le a n Howard, Laticia Jones, and David Doughty for failure to exhaust

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-40047 Document: 00511334637 Page: 2 Date Filed: 12/29/2010 No. 10-40047 a d m in is t r a t iv e remedies and dismissed the claim against Defendant Porsche S im o n based on qualified immunity. B u r lin g contends that the district court erred by dismissing his claims for fa ilu r e to exhaust administrative remedies because the district court applied the w r o n g legal standard and his grievances were sufficient to alert prison officials t o his claims. Contrary to Burling's contention, the standard set forth in

J o h n s o n v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004), for assessing the s u ffic ie n c y of a grievance continues to be applicable following the Supreme C o u r t 's decision in Jones v. Bock, 549 U.S. 199, 218 (2007). The district court c o r r e c t ly applied this standard when it determined that Burling's grievances w e r e sufficient to alert prison officials that he contended Simon failed to properly c o n d u c t the life endangerment investigation but insufficient to alert prison o ffic ia ls that he contended Howard and Jones failed to intervene during the a s s a u lt and Doughty failed to properly supervise and train his employees. Therefore, the district court's judgment as to these defendants is AFFIRMED. F o r the first time on appeal, Burling contends that Simon was not entitled t o qualified immunity because she falsely stated that he did not request a h o u s in g reassignment and did not actually submit the life endangerment report t o the supervising officer until after he was assaulted. This argument is waived, a n d we decline to consider it. See Jennings v. Owens, 602 F.3d 652, 657 n.7 (5th C ir . 2010). B u r lin g contends alternatively that Simon was not entitled to qualified im m u n it y because she did not order or recommend that he be transferred to a d iffe r e n t housing unit. Simon was not authorized to change Burling's housing a s s ig n m e n t . However, Burling has raised a genuine issue of material fact r e g a r d in g whether Simon was deliberately indifferent for failing to recommend t h a t he be transferred. S im o n moved for summary judgment on the basis of her reliance on B u r lin g 's statement that he was not in fear for his safety and the assurance of 2

Case: 10-40047 Document: 00511334637 Page: 3 Date Filed: 12/29/2010 No. 10-40047 t h e inmate who threatened him that he did not intend to harm Burling. In his a ffid a v it , Burling averred that he asked to be transferred and communicated his fe a r of serious, imminent injury to Simon when she informed him that he was n o t going to be transferred. For summary judgment purposes, we must accept h is version of events as true. See Celestine v. Petroleos de Venezuella SA,

2 6 6 F.3d 343, 349 (5th Cir. 2001). In addition, the inmate who threatened B u r lin g made conflicting statements about his intent to harm him. A reasonable j u r y could thus conclude that Simon's reliance on the inmate's conflicting s t a t e m e n t s as a basis for not recommending a transfer was unreasonable in light o f the threats made against Burling, which were substantiated by a fellow o ffic e r ; Burling's request to be transferred; and Burling's stated fear of serious, im m in e n t injury. Therefore, there was a genuine issue of material fact whether S im o n was on notice of a serious threat of harm to Burling. H o w e v e r , Simon was "entitled to qualified immunity unless clearly e s t a b lis h e d law showed that . . . [her] response was insufficient." Johnson, 3 8 5 F.3d at 526. Burling's version of events, which we must accept as true, d e m o n s t r a t e s that Simon's failure to take further action in light of the s u b s t a n t ia l risk of harm to Burling might be viewed as objectively unreasonable u n d e r the parameters set forth in Johnson. See id. at 526-27. Therefore, the d is t r ic t court erroneously granted Simon summary judgment on the basis of q u a lifie d immunity, and the judgment is VACATED as to Burling's claim against S im o n . B u r lin g also contends that the district court abused its discretion by d e n y in g his requests for discovery prior to ruling on the defendants' motion for s u m m a r y judgment. Burling's reliance on Hinojosa v. Johnson, 277 F. App'x 3 7 0 , 374-78 (5th Cir. 2008), is misplaced. Burling's speculation that Simon's r e la t io n s h ip with the inmate who assaulted him tainted her investigation is r a is e d for the first time on appeal. Even if we considered this argument and its

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Case: 10-40047 Document: 00511334637 Page: 4 Date Filed: 12/29/2010 No. 10-40047 r e le v a n c e to the qualified immunity issue, the discovery request Burling made in the district court was not narrowly tailored to this issue. Cf. id. at 378. F in a lly , Burling contends that appointed counsel was ineffective and r e q u e s ts that we order the district court to appoint different counsel. Assuming t h a t counsel rendered ineffective assistance in connection with the instant p r o c e e d in g s , counsel's deficient performance does not constitute a basis upon w h ic h to invalidate the district court's judgment. The constitutional right to e ffe c t iv e assistance of counsel does not apply in a civil case. See Sanchez v. U.S. P o s ta l Serv., 785 F.2d 1236, 1237 (5th Cir. 1986). a r g u m e n t is without merit. T h e judgment of the district court is AFFIRMED IN PART and VACATED I N PART, and the case is REMANDED for further proceedings. Accordingly, Burling's

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