     Case: 15-11049      Document: 00513982824         Page: 1    Date Filed: 05/08/2017




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

                                    No. 15-11049                                FILED
                                  Summary Calendar                           May 8, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
JAMES DANIEL HARRIS,

                                                 Plaintiff-Appellant

v.

DAVID DUKE, Wichita County Sheriff; WICHITA COUNTY SHERIFF
OFFICE; WICHITA COUNTY, TEXAS; KEVIN CALLAHAN, Chief Deputy;
DEREK MEADOR; DONNY JOHNS; DEPUTY BECCERRA; DEPUTY
MCMURTURY; DEPUTY HILL; DEPUTY LOWERY; DEPUTY ZENON;
DEPUTY PIKE; DEPUTY BONNIN; NURSE LISA; NURSE DAVID; X-RAY
TECHNICIAN    SANDY;    DOCTOR      DUHAM;    CORRECTIONAL
HEALTHCARE       COMPANIES;        HEALTH     PROFESSIONAL,
INCORPORATED; DEPUTY JOHN DOE #1; DEPUTY JOHN DOE #2;
DEPUTY JOHN DOE #3,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:12-CV-127


Before DAVIS, SOUTHWICK, and HIGGINSON, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-11049     Document: 00513982824    Page: 2   Date Filed: 05/08/2017


                                 No. 15-11049

      James Daniel Harris, Texas prisoner # 1716217, proceeding pro se and
in forma pauperis (IFP), appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint. Harris alleged in his complaint that prison officials violated
the Eighth Amendment by acting with deliberate indifference (i) to his safety
and security when they failed to protect him from being attacked by another
inmate and (ii) to his medical needs when they failed to provide him with the
medical care he believed necessary for his leg, which was broken during the
attack, and delayed his medical treatment. The district court dismissed the
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).        Such a
dismissal is reviewed for an abuse of discretion. Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999).
      Harris has failed to establish that the district court’s dismissal of his
failure-to-protect claims was an abuse of discretion. See Berry, 192 F.3d at
507. The facts alleged by Harris do not show that any of the defendants were
aware of and disregarded an excessive risk to Harris’s safety by failing to
transfer him away from the inmate who ultimately attacked him, particularly
where Harris alleged no prior threats of physical violence or prior physical
altercations. See Farmer v. Brennan, 511 U.S. 825, 837-38 (1994); Longoria v.
Texas, 473 F.3d 586, 592 (5th Cir. 2006). The facts alleged by Harris also do
not show that any the defendants were present when the attack was initiated.
Rather, Harris alleges that one of the defendants, after witnessing the attack
on “close circuit television,” diffused the attack by approaching the inmates,
stopping the attack by causing the attacking inmate to flee, and ordering a
lockdown.   Accordingly, Harris’s complaint does not establish a claim for
deliberate indifference.
      Moreover, Harris has failed to establish that the district court’s
dismissal of his denial-of-care claims was an abuse of discretion. See Berry,



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    Case: 15-11049      Document: 00513982824       Page: 3    Date Filed: 05/08/2017


                                    No. 15-11049

192 F.3d at 507. While Harris’s allegations may show delay, malpractice, or a
disagreement over treatment, they do not rise to the “extremely high standard”
of deliberate indifference. See Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001).
      Because Harris’s constitutional or federal law claims were dismissed as
frivolous, and he is not entitled to civil rights or federal relief, the district court
erred in dismissing his federal claims without prejudice. See Marts v. Hines,
117 F.3d 1504, 1506 (5th Cir. 1997).
      Accordingly, we MODIFY the judgment of dismissal to reflect that
Harris’s constitutional or federal law claims are DISMISSED WITH
PREJUDICE and AFFIRM AS MODIFIED. This court’s affirmance and the
district court’s dismissal are counted as one strike under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Harris is
WARNED that if he accumulates three strikes, he will not be allowed to
proceed IFP in any civil action or appeal unless he is under imminent danger
of serious physical injury. See § 1915(g). Finally, Harris’s motion for leave to
file a supplemental brief is DENIED.




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