De La Garza v. Stringfellow

75 F. App'x 247

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 12, 2003
• Docket: 03-50261
• Status: Unpublished

Opinion

PER CURIAM: *

Albert De La Garza, Texas prisoner # 645460, appeals the Rule 12(b)(6) dismissal of his 42 U.S.C. § 1983 action. The dismissal is reviewed de novo. (De La Garza’s motions for summary judgment, sanctions, and to strike Appellees’ brief are DENIED.)

De La Garza’s allegations concerning staff shortages at TDCJ do not constitute an Eighth Amendment violation; for example, he has not shown that the claimed staff shortages have led to any specific problems with security or inmates’ access to food, medical care, or sanitation. See Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); see also Woods v. Edwards, 51 F.3d 577, 581 (5th Cir.1995).

De La Garza also asserts the TDCJ must comply with the staffing requirements of Ruiz v. Johnson, 37 F.Supp.2d 855 (S.D.Tex.1999), reversed and remanded, 243 F.3d 941 (5th Cir.2001), on remand, 154 F.Supp.2d 975, 989 (S.D.Tex. 2001). Noncompliance with Ruiz is not actionable under § 1983. See Green v. McKaskle, 788 F.2d 1116, 1122 (5th Cir.1986).

De La Garza has not shown a constitutional violation based on the allegedly inadequate response to his grievances, being left unsupervised on several occasions, or being without water for one and a half hours. See Woods, 51 F.3d at 581; see also Daniels v. Williams, 474 U.S. 327, 336, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (negligence does not amount to a constitutional violation). De La Garza’s claim that he was verbally abused by a prison guard does not give rise to a § 1983 action. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). Further, De La Garza has not shown that prison officials were deliberately indifferent to a risk of attack by other inmates; they responded immediately by preparing a life endangerment report and granting his request for new housing. See Farmer, 511 U.S. at 847; Woods, 51 F.3d at 581.

For the first time on appeal, De La Garza contends that the magistrate judge and district judge were biased. De La Garza failed to present this contention at a reasonable time in the litigation. See Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203, 216 (5th Cir.1998).

AFFIRMED; ALL OUTSTANDING MOTIONS DENIED

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.