     Case: 10-40047 Document: 00511334637 Page: 1 Date Filed: 12/29/2010




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

                                                 FILED
                                                                         December 29, 2010
                                     No. 10-40047
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DONALD L. BURLING,

                                                   Plaintiff-Appellant

v.

PORSCHE SIMON, Sergeant; UNIDENTIFIED PARTIES, Two Unknown Black
Female Correctional Officers, Stiles Unit; DAVID DOUGHTY; HARLEAN
HOWARD; L. MITCHELL, Officer; LATICIA JONES,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:05-CV-597


Before JONES, Chief Judge and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Donald L. Burling, Texas prisoner # 1026184, appeals the district court’s
summary judgment dismissal of his 42 U.S.C. § 1983 complaint against three
correctional officers and the warden for failure protect him from an assault by
another inmate. The district court dismissed the claims against Defendants
Harlean Howard, Laticia Jones, and David Doughty for failure to exhaust



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40047 Document: 00511334637 Page: 2 Date Filed: 12/29/2010

                                  No. 10-40047

administrative remedies and dismissed the claim against Defendant Porsche
Simon based on qualified immunity.
      Burling contends that the district court erred by dismissing his claims for
failure to exhaust administrative remedies because the district court applied the
wrong legal standard and his grievances were sufficient to alert prison officials
to his claims.   Contrary to Burling’s contention, the standard set forth in
Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004), for assessing the
sufficiency of a grievance continues to be applicable following the Supreme
Court’s decision in Jones v. Bock, 549 U.S. 199, 218 (2007). The district court
correctly applied this standard when it determined that Burling’s grievances
were sufficient to alert prison officials that he contended Simon failed to properly
conduct the life endangerment investigation but insufficient to alert prison
officials that he contended Howard and Jones failed to intervene during the
assault and Doughty failed to properly supervise and train his employees.
Therefore, the district court’s judgment as to these defendants is AFFIRMED.
      For the first time on appeal, Burling contends that Simon was not entitled
to qualified immunity because she falsely stated that he did not request a
housing reassignment and did not actually submit the life endangerment report
to the supervising officer until after he was assaulted. This argument is waived,
and we decline to consider it. See Jennings v. Owens, 602 F.3d 652, 657 n.7 (5th
Cir. 2010).
      Burling contends alternatively that Simon was not entitled to qualified
immunity because she did not order or recommend that he be transferred to a
different housing unit. Simon was not authorized to change Burling’s housing
assignment. However, Burling has raised a genuine issue of material fact
regarding whether Simon was deliberately indifferent for failing to recommend
that he be transferred.
      Simon moved for summary judgment on the basis of her reliance on
Burling’s statement that he was not in fear for his safety and the assurance of

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                                  No. 10-40047

the inmate who threatened him that he did not intend to harm Burling. In his
affidavit, Burling averred that he asked to be transferred and communicated his
fear of serious, imminent injury to Simon when she informed him that he was
not going to be transferred. For summary judgment purposes, we must accept
his version of events as true.    See Celestine v. Petroleos de Venezuella SA,
266 F.3d 343, 349 (5th Cir. 2001). In addition, the inmate who threatened
Burling made conflicting statements about his intent to harm him. A reasonable
jury could thus conclude that Simon’s reliance on the inmate’s conflicting
statements as a basis for not recommending a transfer was unreasonable in light
of the threats made against Burling, which were substantiated by a fellow
officer; Burling’s request to be transferred; and Burling’s stated fear of serious,
imminent injury. Therefore, there was a genuine issue of material fact whether
Simon was on notice of a serious threat of harm to Burling.
      However, Simon was “entitled to qualified immunity unless clearly
established law showed that . . . [her] response was insufficient.” Johnson,
385 F.3d at 526. Burling’s version of events, which we must accept as true,
demonstrates that Simon’s failure to take further action in light of the
substantial risk of harm to Burling might be viewed as objectively unreasonable
under the parameters set forth in Johnson. See id. at 526-27. Therefore, the
district court erroneously granted Simon summary judgment on the basis of
qualified immunity, and the judgment is VACATED as to Burling’s claim against
Simon.
      Burling also contends that the district court abused its discretion by
denying his requests for discovery prior to ruling on the defendants’ motion for
summary judgment. Burling’s reliance on Hinojosa v. Johnson, 277 F. App’x
370, 374-78 (5th Cir. 2008), is misplaced. Burling’s speculation that Simon’s
relationship with the inmate who assaulted him tainted her investigation is
raised for the first time on appeal. Even if we considered this argument and its



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relevance to the qualified immunity issue, the discovery request Burling made
in the district court was not narrowly tailored to this issue. Cf. id. at 378.
      Finally, Burling contends that appointed counsel was ineffective and
requests that we order the district court to appoint different counsel. Assuming
that counsel rendered ineffective assistance in connection with the instant
proceedings, counsel’s deficient performance does not constitute a basis upon
which to invalidate the district court’s judgment. The constitutional right to
effective assistance of counsel does not apply in a civil case. See Sanchez v. U.S.
Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986).         Accordingly, Burling’s
argument is without merit.
      The judgment of the district court is AFFIRMED IN PART and VACATED
IN PART, and the case is REMANDED for further proceedings.




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