     Case: 16-20701       Document: 00514406565         Page: 1     Date Filed: 03/28/2018




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

                                       No. 16-20701                          FILED
                                                                       March 28, 2018
                                                                        Lyle W. Cayce
REFUGIO VELA, JR.,                                                           Clerk

               Plaintiff - Appellant

v.

ADRIAN GARCIA; SERGEANT JEFFERSON; DETENTION OFFICER
CALDWELL; DETENTION OFFICER MAYO; DETENTION OFFICER
JAMES; DETENTION OFFICER MUCKER; DETENTION OFFICER
HEREFORD,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-1618


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Refugio Vela, Jr., Texas prisoner # 1976542 and proceeding pro se,
challenges the dismissal of his 42 U.S.C. § 1983 action, asserting he was
injured by another prisoner, and claiming Adrian Garcia, then sheriff of Harris
County, Texas, and six Harris County Jail (HCJ) personnel failed to protect


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-20701
him. Primarily, at issue is whether Vela abandoned this appeal by failing to
adequately brief his claims. AFFIRMED.
                                        I.
      On 8 December 2014, Sergeant Jefferson and five deputies escorted a
handcuffed prisoner into HCJ cellblock 4G2, where Vela was confined. Vela
alleges the prisoner was resisting the transfer, and shouting threats to “hurt
somebody” if released from handcuffs and left in the dorm.
      Sergeant Jefferson ordered deputies to remove the handcuffs.          Once
unrestrained, the prisoner rushed towards Vela and struck him on the head.
Vela claims this assault aggravated existing neck and back injuries.
      Vela pursued this failure-to-protect action, seeking damages and
claiming the HCJ personnel put his life in danger by failing to protect him from
the transferred prisoner. Concluding Vela’s complaint lacked an “arguable
basis in law”, the district court dismissed it with prejudice as frivolous. Vela
v. Garcia, No. 4:15-cv-01618, slip op., at *4 (S.D. Tex. 14 July 2016).
                                       II.
      In his one-page brief, supplemented by a one-page exhibit stating factual
allegations, Vela claims: the six HCJ personnel failed to protect him from his
attacker; he was deprived of a fair hearing in district court; and he is entitled
to damages. Because Vela fails to adequately brief his claims, they are not
preserved for review. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
Alternatively, his underlying failure-to-protect claim is meritless because he
fails to allege the HCJ personnel knew of a substantial risk of serious harm
and failed to act. Farmer v. Brennan, 511 U.S. 825, 832–34 (1994).
                                       A.
      As is far more than well-established, although a pro se brief is construed
liberally, all contentions in it are required to “be briefed to be preserved”.
Yohey, 985 F.2d at 225 (quoting Price v. Digital Equip. Corp., 846 F.2d 1026,
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                                  No. 16-20701
1028 (5th Cir. 1988)). In other words, notwithstanding his proceeding pro se,
Vela must adequately brief his claims in order to preserve them for review. Id.
at 224–25. Among other requirements, an appellant’s brief must include an
argument section containing “citations to the authorities and parts of the
record on which the appellant relies”. Fed. R. App. P. 28(a)(8)(A). Further,
conclusory assertions are insufficient to support a claim of a constitutional
deprivation. E.g., Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).
      Vela’s brief includes only conclusory assertions that the six HCJ
personnel put him in danger by ignoring his attacker’s threats; and, he does
not even mention why the then sheriff would be liable. The brief contains no
citations to any legal authority or the record. As a result, Vela does not
adequately brief his claims; and, therefore, they are not preserved for review.
Yohey, 985 F.2d at 224–25. In sum, because Vela fails to claim or show error
in the district court’s analysis, it is as if he took no appeal. E.g., Brinkmann v.
Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). (Contrary
to the dissent at 1, Vela’s totally inadequate brief falls far short of meeting the
standard for being acceptable, even in the exercise of our greatest discretion,
as reflected in the authority relied upon by the dissent.)
                                        B.
      In the alternative, the complaint of a plaintiff proceeding in forma
pauperis may be dismissed when the court determines the action is frivolous.
28 U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous if it lacks an arguable
basis in law or fact. E.g., Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)). “A
complaint lacks an arguable basis in law if it is based on an indisputably
meritless legal theory, such as if the complaint alleges the violation of a legal
interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th
Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)).
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                                  No. 16-20701
A claim “is factually frivolous when the facts alleged are fantastic or delusional
scenarios or the legal theory upon which a complaint relies is indisputably
meritless”. Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999) (internal
citation and quotation marks omitted).
      Liberally construing Vela’s underlying claim on appeal as one for failure-
to-protect, he must demonstrate “he was incarcerated under conditions posing
a substantial risk of serious harm and . . . prison officials were deliberately
indifferent to his need for protection”. Jones v. Greninger, 188 F.3d 322, 326
(5th Cir. 1999) (quoting Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998)).
Deliberate indifference is subjective, not objective. Farmer, 511 U.S. at 837.
An official acts with deliberate indifference only when he is “aware of facts
from which the inference could be drawn that a substantial risk of serious
harm exists, and [] also draw[s] the inference”. Id. Therefore, to state a valid
failure-to-protect claim, Vela must allege the HCJ personnel knew of a
substantial risk of serious harm and failed to act. Id. at 832–34.
      Although Vela claims the HCJ personnel put him in danger by ignoring
the prisoner’s threats and releasing him into the dorm, he does not allege they
acted with the requisite deliberate indifference. (The dissent at 1–2 does not
show otherwise.) In other words, Vela does not maintain they were aware of
facts that lead to the inevitable conclusion he was exposed to substantial
danger. Accordingly, because Vela fails to allege the HCJ personnel were
aware of facts from which the inference could be drawn that Vela was exposed
to a substantial risk of serious harm, he does not present a viable failure-to-
protect-claim.
      In sum, Vela’s complaint was dismissed with prejudice as frivolous.
Vela, No. 4:15-cv-01618, slip op., at *4. Essentially for the reasons stated by
the district court, Vela’s claims are without merit.


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                                 No. 16-20701
                                      C.
      That dismissal as frivolous counts as a strike under 28 U.S.C. § 1915(g).
Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015). Vela is warned: receiving
two more strikes will preclude his proceeding in forma pauperis 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”. 28 U.S.C. § 1915(g).
                                      III.
      AFFIRMED; SANCTION WARNING ISSUED.




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                                  No. 16-20701
JAMES L. DENNIS, Circuit Judge, dissenting:
      Vela appeals from the district court’s dismissal of his complaint as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Vela’s pro se appellate brief cites
to 42 U.S.C. § 1981 and § 1983, but does not provide citations to the record or
other legal authority. See Fed. R. App. P. 28(a)(8)(A). However, we are within
our discretion to consider an appellant’s pro se brief, despite his technical
noncompliance with the rules, so long as the brief argues that the district court
committed some cognizable error. See, e.g., Haase v. Countrywide Home Loans,
Inc., 748 F.3d 624, 629 (5th Cir. 2014) (declining to dismiss an appeal for
inadequate briefing where appellant’s brief asserted an error by the trial
court); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (same); Abdul-
Alim Amin v. Universal Life Ins. Co., 706 F.2d 638, 640 n.1 (5th Cir. 1983)
(same). In these instances, we examine whether the appellant’s noncompliance
with the rules “prejudice[d] the opposing party” by causing “harm or unfair
surprise.”   Grant v. Cuellar, 59 F.3d 523, 524–25 (5th Cir. 1995) (finding
prejudice where defendants were forced to speculate about the relevant issues
and ultimately failed to brief some of the issues).
      Here, Vela’s brief states that he “was deprived [of] a fair trial proceeding
and medical benefits and money damages.”              Construed liberally, Vela
challenges the district court’s dismissal of his case, which deprived him of an
adjudication on the merits of his claim and the potential to seek remedies for
his injuries. There is no evidence that Vela’s briefing prejudiced the appellees.
Vela’s brief clearly alleges “negligence” and “failure to protect,” putting the law
enforcement officers on notice of the claims against them.
      Nor are Vela’s claims against the five deputies and their supervisor
conclusory or frivolous. Vela has alleged sufficient facts to create a plausible
inference that the deputies and their supervisor knew of the “substantial risk
of serious harm” the other inmate posed to Vela and were “deliberately
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                                  No. 16-20701
indifferent to his need for protection.” See Jones v. Greninger, 188 F.3d 322,
326 (5th Cir. 1999). Vela alleged that it took five deputies and their supervisor
to escort the inmate who attacked him to the dorm. Vela alleged that the
inmate was “over 6’4” tall” and was “real mad” about being transferred to the
new dorm. Vela alleged that he was the only other person awake at the time
of the incident, was in close proximity to the inmate when the inmate was
uncuffed, and the inmate told the deputies “over 6 times” that he “was going to
hurt someone if [they] uncuff[ed] [him].”       Vela alleged that the deputies
“released [the inmate], paying no [heed] to his . . . warnings of violence.” And
Vela alleged that the inmate assaulted him “immediately” after being
uncuffed.
      Vela’s allegations are not factually frivolous because they do not present
a “fantastic or delusional scenario[].” Harris v. Hegmann, 198 F.3d 153, 156
(5th Cir. 1999) (internal citation and quotation marks omitted). Nor do not
present a legal theory that is “indisputably meritless.” Id. All of the alleged
facts, taken together, allow a court to draw the plausible inference that the five
deputies and their supervisor knew there was a substantial risk that turning
this other inmate loose, after he vociferously and repeatedly threatened to hurt
someone if his handcuffs were removed, would put Vela, who stood just a few
feet away, at substantial risk of injury.       See Bosarge v. Miss. Bureau of
Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (“[a] claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”).
For these reasons, I do not believe Vela’s claims are meritless, and I
respectfully dissent.




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