     Case: 15-30669       Document: 00513773923         Page: 1     Date Filed: 11/28/2016




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

                                     No. 15-30669
                                                                                  Fifth Circuit

                                                                                FILED
                                   Summary Calendar                     November 28, 2016
                                                                           Lyle W. Cayce
DONALD LEE THIEKE,                                                              Clerk


                                                  Plaintiff - Appellant

v.

FRANKLIN PARISH DETENTION CENTER; JAMES TARVER; MALCOLM
WELSH; CHAD LEE; KEVIN COBBS, also known as Kevin Cobb,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:14-CV-2947


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Donald Lee Thieke, Louisiana prisoner #572306, proceeding pro se and
in forma pauperis, contests the dismissal, for failure to state a claim, of his 42
U.S.C. § 1983 action for injuries allegedly suffered when another inmate at the
Franklin Parish Detention Center (FPDC) attacked him. Thieke asserts in his
amended complaint the defendants (three FPDC employees and the Franklin



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-30669

Parish sheriff) failed to protect him, and, accordingly, their indifference to
Thieke’s safety and serious medical needs violated his Eighth Amendment
rights.
      The magistrate judge screened the amended complaint pursuant to 28
U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1), and concluded it failed to state a claim
upon which Thieke could obtain relief. In Thieke’s hand-written objections to
the magistrate’s recommendation, he alleged for the first time that, two
months before the alleged attack, he and another inmate “informed” a prison
guard (but not one of the defendants) “of the potential threat of the assailant”,
and still “nothing was done to alleviate the possible problem”. Thieke “felt [this
failure] was negligence”.       Nonetheless, the district court adopted the
magistrate’s recommendation and dismissed the amended complaint.
      Thieke’s contention that the defendants deliberately refused to act is
raised for the first time on appeal. His amended complaint contained no such
claim, and he represented to the district court the defendants’ failure was due
to negligence. Because Thieke did not raise this issue in district court, review
is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Thieke must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      Negligence furnishes no basis for § 1983 liability, but deliberate
indifference does. Farmer v. Brennan, 511 U.S. 825, 828, 835 (1994). Thieke
did not plead the requisite culpability level, and accordingly there can be no
clear or obvious error. Id. at 839; see also Puckett, 556 U.S. at 135; United
States v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009).



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                                No. 15-30669

      On the other hand, Thieke’s medical-needs claim is reviewed de novo.
See Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). The claim on appeal
involves screws in his jaw which, we infer, Thieke believes should be removed.
In any event, this claim does not support a conclusion that § 1983 liability
attaches to defendants. See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.
1995). Additionally, to the extent the claim pertains to a delay in treatment,
the amended complaint fails to make the requisite contention of substantial
harm. See Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2000).
      AFFIRMED.




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