     Case: 14-31314      Document: 00513361858         Page: 1    Date Filed: 01/29/2016




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

                                    No. 14-31314                                    FILED
                                  Summary Calendar                            January 29, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
HENRY KIMBALL,

                                                 Plaintiff-Appellant

v.

SERGEANT BENJAMIN; DOCTOR CLEVELAND; NATE CAIN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-919


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Henry Kimball, Louisiana prisoner # 120724, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 civil suit as frivolous and for failure to state
a claim upon which relief could be granted. In his complaint, Kimball alleged
that the defendants were guilty of deliberate indifference and violating his
constitutional right against cruel and unusual punishment.                   Specifically,
Kimball accused Sergeant Benjamin of a failure to protect Kimball because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31314

Benjamin was not at his assigned duty post when Kimball was attacked by
another prisoner.    Kimball alleged that Dr. Cleveland subjected him to
unconstitutional conditions of confinement and inadequate medical treatment
by placing him in the segregation unit where his pain and suffering were
exacerbated because the temperatures rose above 100 degrees. In addition,
Kimball asserted that, as the leader of the prison, Warden Cain was
responsible for the actions or inactions of his subordinates. Kimball has also
moved this court for the appointment of counsel.
      We review the dismissal of a complaint as frivolous and for failure to
state a claim de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Kimball does not challenge the district court’s determination that defendant
Cain could not be liable under the doctrine of vicarious liability or respondeat
superior. When an appellant fails to identify any error in the district court’s
analysis, it is the same as if the appellant had not appealed that issue.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Accordingly, Kimball has abandoned his claims against Cain. Id.
      Regarding his failure to protect claim, Kimball does not establish that
Sergeant Benjamin was deliberately indifferent to his health or safety. See
Wilson v. Seiter, 501 U.S. 294, 299-300 (1991). Kimball alleged that another
inmate scalded him with a mixture of hot coffee and magic shave and that
during the incident, Sergeant Benjamin was away from his duty post engaged
in non-work-related activities. However, Kimball does not allege any facts that
demonstrate that Sergeant Benjamin had actual knowledge that the offender
posed a serious threat to Kimball’s safety and disregarded that risk. See
Whitley v. Hanna, 726 F.3d 631, 641 (5th Cir. 2013).        Whether Sergeant
Benjamin’s abandonment of his duty post might have been negligent is
immaterial as mere negligence is insufficient to support a claim for deliberate



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                                 No. 14-31314

indifference. See Longoria v. Texas, 473 F.3d 586, 593 n.9 (5th Cir. 2006);
Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999). Accordingly, the district
court properly determined that Kimball failed to establish that Sergeant
Benjamin was liable. Rogers v. Boatright, 709 F.3d 403, 407-08 (5th Cir. 2013);
Longoria, 473 F.3d at 592-93
      Regarding his unconstitutional conditions of confinement and failure to
provide adequate medical care claims, Kimball also fails to establish that
Dr. Cleveland acted with deliberate indifference. See Wilson, 501 U.S. at 304.
Kimball argues that Dr. Cleveland deprived him of the “minimal civilized
measure of life’s necessities” when he ordered nurses to place him in the non-
air-conditioned segregation unit after his return from the hospital on the day
of the incident. Even if Kimball could show that Dr. Cleveland violated the
Eighth Amendment by ordering Kimball to be housed in a unit with
temperature extremes, Kimball does not allege that he informed officials that
the temperatures were causing his burns to be more painful nor does he allege
that Dr. Cleveland knew about the uncomfortable temperatures and failed to
take action to alleviate Kimball’s pain and suffering. Moreover, the record
reveals that Dr. Cleveland, upon personally evaluating Kimball’s medical
condition, was attentive to Kimball’s safety and needs, by placing Kimball in
medical isolation, providing daily antibiotics, and regularly observing the
healing process.     Accordingly, the district court properly determined that
Kimball failed to establish an Eighth Amendment claim against Dr. Cleveland.
See Wilson, 501 U.S. at 298; Domino v. Texas Dep’t of Crim. Justice, 239 F.3d
752, 756 (5th Cir. 2001).
      We are not required to appoint counsel for an indigent plaintiff in a civil
suit unless exceptional circumstances exist warranting such an appointment.
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Kimball’s claims are



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                                 No. 14-31314

not particularly complex and, given the number and length of his filings, he
has demonstrated that he is capable of competently proceeding through the
court system without the assistance of counsel. Accordingly, we deny his
motion for the appointment of counsel. See id.; Baranowski v. Hart, 486 F.3d
112, 126 (5th Cir. 2007).
      The district court’s dismissal of Kimball’s complaint pursuant to
28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A counts as a strike for purposes
of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Kimball is cautioned that if he accumulates three strikes, he will not be able
to proceed IFP in any civil action or appeal while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g).
      AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.




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