Rudolph Perkins v. Terry Terrell, et al

Filing

UNPUBLISHED OPINION FILED. [11-31161 Affirmed ] Judge: TMR , Judge: JES , Judge: ECP Mandate pull date is 07/17/2012 [11-31161]

Case: 11-31161

Document: 00511899757

Page: 1

Date Filed: 06/26/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-31161
Summary Calendar

June 26, 2012
Lyle W. Cayce
Clerk

RUDOLPH PERKINS,
Plaintiff-Appellant,
versus
TERRY TERRELL; SELTEN MANUEL; EBONARY HALL;
JAMES M. LEBLANC; WAYNE H. CALABRESE; ANGELA EASOM,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Louisiana
No. 2:11-CV-283

Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 11-31161

Document: 00511899757

Page: 2

Date Filed: 06/26/2012

No. 11-31161
Rudolph Perkins, Louisiana prisoner # 317312, appeals the dismissal of
his 42 U.S.C. § 1983 suit as frivolous and for failure to state a claim under
28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i) and (ii). Proceeding pro se and in
forma pauperis (“IFP”), Perkins sued several supervisory officials and employees
who worked in food service, alleging that they were deliberately indifferent to
his allegedly serious medical needs by serving him processed foods in violation
of a diet prescribed by his physician.
Perkins suggests that the district court erred by dismissing his claims
against the supervisory officials because such officials can be liable under § 1983
for their policy decisions as well as failure to perform duties. Perkins does not
allege, however, that the defendants were involved personally with any decisions
concerning his diet or that they implemented any policies that resulted in injury
to him. He thus fails to dispute the basis for the dismissal of the officials.
Although we liberally construe pro se briefs, arguments must be briefed sufficiently to be preserved. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Perkins’s failure to address the district court’s basis for dismissing his claims,
“without even the slightest identification of any error in [the district court’s]
legal analysis or its application to [his] suit . . ., is the same as if he had not
appealed that judgment.” Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
Perkins suggests that the district court erred by dismissing his claims
against the remaining defendants without allowing him to obtain his medical
records and the prison’s menu. He contends that his medical records would have
shown that the defendants failed to comply with his doctor’s order that he
receive a high-protein, low-sodium diet. He claims that the prison’s menu would
have shown that diet meals and regular meals are cooked in the same pot and
that “all diets are one and the same.”
Viewed in the light most favorable to Perkins and accepted as true, the factual allegations in his complaint and the accompanying documents establish that
2

Case: 11-31161

Document: 00511899757

Page: 3

Date Filed: 06/26/2012

No. 11-31161
he was served processed foods such as patties, sausage, cold cuts, potatoes, and
beans by defendant Ebonary Hall. The documents show, however, that the
defendants did not believe that the food violated Perkin’s diet and did not think
that serving it posed a substantial risk of serious harm. See Farmer v. Brennan,
511 U.S. 825, 837, 847 (1994). Perkins himself noted that Hall was “very optimistic” that he was receiving the prescribed diet. Perkins’s own documentation
also showed that the food-services manager relied on diet-order forms that indicated Perkins was receiving the diet ordered by his doctor. Because Perkins’s
complaint and the accompanying documents show that there was no “wanton
disregard for [his] serious medical needs,” he failed to meet the “extremely high
standard” for deliberate indifference. Domino v. Tex. Dep’t of Crim. Justice, 239
F.3d 752, 756 (5th Cir. 2001). The district court did not err by dismissing the
suit. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The dismissal counts as a strike for purposes of § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Perkins is warned that, once he
accumulates three strikes, he may not proceed IFP 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).
The judgment is AFFIRMED.

3