     Case: 18-50622      Document: 00514972996         Page: 1    Date Filed: 05/28/2019




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

                                      No. 18-50622                          FILED
                                                                        May 28, 2019
                                                                       Lyle W. Cayce
SANTIAGO HERNANDEZ,                                                         Clerk

                                                 Plaintiff-Appellant

v.

BEXAR COUNTY SHERIFF’S DEPARTMENT,

                                                 Defendant-Appellee


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CV-486


Before OWEN, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Santiago Hernandez, now Texas prisoner # 02089381, has moved for
leave to proceed in forma pauperis (IFP) on appeal from the dismissal of his 42
U.S.C. § 1983 complaint under 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). He
argued that, while he was a pretrial detainee at the detention center in Bexar
County, he slipped and fell in the open-air recreation yard. He argued that jail
officials knew that the yard often became slippery when it rained and failed to




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50622

address that potential hazard prior to his injury. Hernandez also asserted
that, after he slipped and fell, he was denied prompt medical care.
      By moving to proceed IFP on appeal, Hernandez is contesting the district
court’s certification decision that his appeal is not taken in good faith under 28
U.S.C. § 1915(a)(3). See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Our inquiry “is limited to whether the appeal involves ‘legal points arguable
on their merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (per curiam) (quoting Anders v. California, 386 U.S. 738,
744 (1967)).
      On appeal, Hernandez does not raise any argument as to his claim that
jail officials were deliberately indifferent to his serious medical needs. He thus
has abandoned any argument regarding this claim. See Brinkmann v. Abner,
813 F.2d 744, 748 (5th Cir. 1987).
      Hernandez reasserts his claim that jail officials disregarded the hazards
presented by an open-air recreation yard that could become slippery and that
he was injured as a result. Because he was a pretrial detainee, his claim arises
under the Due Process Clause and may involve a challenge to either an episodic
act or omission or a condition of confinement. See Hare v. City of Corinth, 74
F.3d 633, 644–45 (5th Cir. 1996) (en banc).
      Rather than alleging the recreation yard itself was harmful or
tantamount to punishment, he instead asserted that he slipped and fell on one
occasion. Accordingly, “this case does not fit well within the conditions-of-
confinement category,” because it involves only an episodic act or omission.
Scott v. Moore, 114 F.3d 51, 53–54 (5th Cir. 1997) (en banc). For an episodic
act or omission to have violated Hernandez’s constitutional rights, he must
“demonstrate[] that [an] official acted or failed to act with deliberate
indifference to the detainee’s needs.” Hare, 74 F.3d at 647–48. Hernandez,
however, did not identify an official responsible for the alleged constitutional

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                                  No. 18-50622

violation, nor did he set forth a basis on which Bexar County could be liable.
He also failed to assert that officials knew the recreation yard presented a
substantial risk of serious harm and subjectively meant for harm to occur. See
Thompson v. Upshur Cty., 245 F.3d 447, 458–59 (5th Cir. 2001). Rather, he
generally asserted that officials negligently maintained the yard by allowing it
to become slippery, which does not support a claim under § 1983. See Coleman
v. Sweetin, 745 F.3d 756, 764–65 (5th Cir. 2014) (per curiam) (explaining courts
frequently reject constitutional claims based on slip and fall accidents because
“the existence of slippery conditions in any populous environment represents
at most ordinary negligence rather than a condition so threatening as to
implicate constitutional standards”); Gobert v. Caldwell, 463 F.3d 339, 346 (5th
Cir. 2006) (explaining “acts of negligence . . . do not constitute deliberate
indifference”); Marsh v. Jones, 53 F.3d 707, 711–712 (5th Cir. 1995) (holding
“a garden-variety negligence claim” based on damages arising from a leaking
air conditioner unit and a slippery floor “is not actionable under section 1983”).
      Even if Hernandez intended to contest a condition of confinement, he did
not allege a nonfrivolous claim. The officials’ alleged negligence in maintaining
the yard would not establish a due process violation. See Daniels v. Williams,
474 U.S. 327, 332–36 (1986).        Moreover, Hernandez makes no plausible
allegation that officials intended the yard to be dangerous to punish the
detainees or that the possibility a detainee might slip and fall was extreme in
relation to the valid purpose of the yard, i.e., to give detainees access to outdoor
recreation and exercise. See Bell v. Wolfish, 441 U.S. 520, 538–39 & n.20, 561
(1979).
      Hernandez has not shown that the district court erred in certifying that
his appeal was not taken in good faith. Accordingly, his IFP motion is denied.
See Baugh, 117 F.3d at 202. The appeal lacks arguable merit and is dismissed
as frivolous. See id. at 202 n.24; 5TH CIR. R. 42.2.

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                                 No. 18-50622

      The district court’s dismissal and our dismissal of this appeal count as
strikes pursuant to § 1915(g). See 28 U.S.C. § 1915(g); Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996), abrogated in part on other grounds by
Coleman v. Tollefson, 135 S.Ct. 1759, 1762–63 (2015). Hernandez is warned
that if 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 28 U.S.C. § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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