Aragon v. Hinkle

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-11192 Summary Calendar

JERRY ARAGON,

Plaintiff-Appellant,

versus

THOMAS HINKLE; SANTOS GARCIA; TONY ASH; MELISSA L. ARESKOG; LONA CHEARIS; CRAIG A. RAINES,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:96-CV-36 - - - - - - - - - - April 22, 1997 Before KING, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

Jerry Aragon (#376237), a state prisoner, has applied for

leave to appeal in forma pauperis (“IFP”) in an appeal from the

magistrate judge’s order dismissing his claims against several

defendants named in his civil rights action. The Prison

Litigation Reform Act applies to this appeal. See Strickland v.

Rankin County Correctional Facility, 105 F.3d 972, 973-76 (5th

Cir. 1997). Aragon has complied with the certification

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-11192 - 2 -

requirements of the PLRA and his motion for leave to proceed in

forma pauperis is GRANTED.

Aragon is assessed an initial partial filing fee of $0.17.

Aragon must also make monthly payments of 20% of the preceding

month’s income credited to his account. See 28 U.S.C.

§ 1915(b)(2). The agency having custody of Aragon is ORDERED to

forward funds from Aragon’s account to the clerk of the district

court in payment of the initial partial filing fee. Thereafter,

funds must be forwarded each time the amount in Aragon’s account

exceeds $10, until the full filing fee of $105 is paid.

Aragon contends that the district court erred in dismissing

his claims against Thomas Hinkle, Santos Garcia, Craig Raines,

and Lona Cheairs for failure to state a claim. See 28 U.S.C.

§ 1915(e)(2)(B)(ii). We have conducted a de novo review of the

record. We hold that, as to the claims against Hinkle and

Garcia, the connection between their alleged actions and a

subsequent assault upon Aragon by another inmate was too

attenuated to support the conclusion that their actions were

causally connected with the assault or that Hinkle and Garcia

exposed Aragon to a substantial risk of serious harm. See Neals

v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Aragon has failed

to allege that Raines acted with deliberate indifference to the

need to protect him from the risk of serious harm by failing to

move him to another cell after the assault. Farmer v. Brennan,

511 U.S. 825, ___, 114 S. Ct. 1970, 1984 (1994). Finally, Aragon No. 96-11192 - 3 -

has failed to allege that he was prejudiced in his legal efforts

by the actions of defendant Cheairs. Henthorn v. Swinson, 955

F.2d 351, 354 (5th Cir. 1992). We decline to reach several

issues pertaining to defendant Cheairs raised by Aragon for the

first time on appeal. See Robertson v. Plano City of Texas, 70

F.3d 21, 23 (5th Cir. 1995). The district court’s judgment is

AFFIRMED.

IFP GRANTED; JUDGMENT AFFIRMED.