     Case: 13-40965      Document: 00513215815         Page: 1    Date Filed: 10/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40965
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          October 1, 2015
ELEAZAR VASQUEZ,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

DIRECTOR BRAD LIVINGSTON; DAVIS, Senior Warden Name Unknown;
MAJOR ADAM R. GONZALEZ; MAJOR EVELYN CASTRO; NURSE
CAMPOS, Name Unknown,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:13-CV-131


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Eleazar Vasquez, Texas prisoner # 1642342, appeals the dismissal of his
42 U.S.C. § 1983 action for failure to state a claim and as frivolous under 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)(1). He contends that he stated
a claim for relief because he alleged that, when an inmate named Burns
sexually assaulted him, strict prison policies had been violated that required


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 13-40965

prison transport areas to be clear of general population inmates when
protective status inmates such as Vasquez were present. He asserts that
prison officials have a duty to protect inmates from violence by other inmates
and that officials must take reasonable measures to abate a known risk of
serious harm to an inmate’s safety. He contends that the defendants were on
notice of the risks he faced because he had been placed in protective status.
      Vasquez does not address the district court’s determination that the
defendants were immune in their official capacities under the Eleventh
Amendment. Nor does he challenge the court’s determination that he failed to
state a claim against the director of the Texas Department of Criminal Justice
and the warden of the prison in their personal capacities because he did not
allege that they were directly involved or that they had enacted
unconstitutional policies.   Accordingly, Vasquez has abandoned his claims
against those two defendants. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). He likewise fails to raise and thereby
abandons any argument that the defendants were liable for damages resulting
from a later, nonviolent encounter with Burns. See id.
      We must determine whether Vasquez stated a claim that defendants
Adam Gonzalez and Evelyn Castro were deliberately indifferent to a
substantial risk of serious harm to him at the time of the sexual assault. See
Farmer v. Brennan, 511 U.S. 825, 828 (1994); Geiger v. Jowers, 404 F.3d 371,
373 (5th Cir. 2005). While “prison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners,” Farmer, 511 U.S. at 833
(internal quotation marks and citation omitted), not “every injury suffered by
one prisoner at the hands of another . . . translates into constitutional liability
for prison officials responsible for the victim’s safety,” id. at 834. “To violate
the Cruel and Unusual Punishments Clause, a prison official must have a



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                                  No. 13-40965

sufficiently culpable state of mind.” Id. at 834 (internal quotation marks and
citation omitted). A prison official acts with deliberate indifference only if he
subjectively “knows of and disregards an excessive risk to inmate . . . safety.”
Id. at 837. The existence of an objective risk to the inmate’s safety alone is
insufficient to establish that a particular defendant disregarded that risk. Id.
at 837-38.
      Vasquez alleged that the response by Gonzalez and Castro following the
sexual assault by Burns was inadequate. He did not allege facts showing that
they knew at the time of the sexual assault that he was at risk and that they
failed to take action to protect him. Accordingly, he failed to state a claim that
the two were deliberately indifferent to a substantial risk of serious harm to
him at the time of his sexual assault. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Farmer, 511 U.S. at 837-38; Harris v. Hegmann, 198 F.3d 153, 156 (5th
Cir. 1999).
      AFFIRMED.




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