     Case: 12-10378       Document: 00512089904         Page: 1     Date Filed: 12/19/2012




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

                                                                            FILED
                                                                        December 19, 2012
                                     No. 12-10378
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DAMOND UNDRAY MOSLEY,

                                                  Plaintiff-Appellant

v.

SHERIFF DEE ANDERSON; LIEUTENANT OLEOS; OFFICER BAKER;
RENZALE TRIMBLE,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-36


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Damond Undray Mosley, Texas prisoner # 1606079, alleged in a 42 U.S.C.
§ 1983 complaint that prison officials contravened the Fifth and Fourteenth
Amendments because they failed to prevent an inmate (i.e., Renzale Trimble)
from attacking him while he was a pretrial detainee. He argued that prison
officials showed deliberate indifference to his safety by removing him from
protective segregation and transferring him to a cell with Trimble, whom


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10378

officials knew would attack him. Mosley suggested that officials orchestrated his
transfer in retaliation for his filing an emergency grievance and coordinated with
Trimble to effectuate the attack. He also alleged that he was denied access to
the courts.
      The district court dismissed Mosley’s complaint both as frivolous and for
failure to state a claim pursuant to 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B).
Accordingly, our review is de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005).
      Mosley has identified Corporal J. Scott, Officer J. Hernandez, Sergeant
Garrett, Officer Clay, and Officer V. Terry as defendants in the present action.
However, he has not made any particular factual allegations regarding these
defendants, and, thus, he has effectively abandoned any claims against them.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Likewise, while
he argues that he was denied access to the courts, he has not alleged specific
facts to support this claim or briefed the requisite elements. See Eason v.
Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996). Thus, Mosley also has abandoned
this claim. See Brinkmann, 813 F.2d at 748.
      Mosley also raises a number of new claims for the first time on appeal. He
asserts that the Tarrant County Sheriff’s Department maintained a policy of not
properly supervising pretrial detainees; that Officer M. Evans delayed medical
assistance after the assault; and that he has been denied proper medical care.
Because Mosley did not raise these claims in the district court, we need not
consider them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
      To the extent that Mosley alleges that Sheriff Anderson showed deliberate
indifference endangering him with and by failing to protect him from Trimble,
that claim is barred by res judicata. Mosley alleged similar claims in a prior
complaint; the district court dismissed the claims with prejudice, and we

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                                  No. 12-10378

affirmed that dismissal. See Mosley v. Anderson, No. 10-11029 (5th Cir. May 13,
2011) (unpublished). Mosley does not identify any basis upon which his claims
differ from his prior allegations other than speculation and he does not otherwise
explicate why the doctrine of res judicata should not apply. The record supports
that Mosley seeks to bring a similar cause of action against the same party (i.e.,
Anderson) even though a final judgment on the merits was rendered by a court
of competent jurisdiction. See Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398,
401 (5th Cir. 2009).
      Mosley’s deliberate-indifference claims against the other defendants are
equally unavailing. The Eighth and Fourteenth Amendments preclude prison
officials from interfering with the safety of pretrial detainees and convicted
prisoners. Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (en
banc). The deliberate-indifference standard set forth in Farmer v. Brennan, 511
U.S. 825, 837 (1994), is the measure of culpability. See id.; Hare, 74 F.3d at 650.
A prison official acts with deliberate indifference only if he knows that a prisoner
faces a substantial risk of serious harm and disregards that risk. Farmer, 511
U.S. at 837. “[T]he official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Id.
      Mosley’s assertions do not support that the defendants were deliberately
indifferent for failing to protect him from an attack by Trimble. He has proffered
no specific factual allegations that establish that the defendants knew of and
disregarded a risk to his safety by orchestrating his removal from segregation
and his placement in a cell where he could be exposed to an anticipated attack
by Trimble, i.e., he has not alleged any particular facts establishing that the
defendants knew that Trimble presented a risk of serious harm and purposefully
exposed Mosley to that risk. See Farmer, 511 U.S. at 837. In effect, Mosley has
proffered only his speculation that his attack was the deliberate consequence of
a conspiracy involving prison officials’ collaboration with an expected assailant;

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his speculative assertions do not sufficiently demonstrate that the defendants
had adequate information to draw an inference that Mosley faced a substantial
risk of attack from Trimble or that they ignored or exposed Mosley to that risk.
See id.; Koch, 907 F.2d at 530.
      Thus, Mosley has not shown that the district court erred in dismissing his
federal claims as frivolous or for failure to state a claim on which relief could be
granted. To the extent that he seeks to allege claims against Trimble, a private
citizen, he has not shown that those claims are cognizable under § 1983 and are
not tort claims arising under state law. Mosley therefore has not shown that the
district court erroneously refused to exercise supplemental jurisdiction over his
claims against Trimble. See Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.
1999). Accordingly, the district court’s judgment should be affirmed.
      Our affirmance of the district court’s dismissal as frivolous and for failure
to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Mosley also was
assessed a strike in connection with his prior appeal. See Mosley, No. 10-11029.
He is warned that if he accumulates three strikes, he may not thereafter proceed
in forma pauperis 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 § 1915(g).
      Mosley has filed for the appointment of counsel and for a new trial.
Because he has not shown exceptional circumstances, his motion for the
appointment of counsel is denied. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.
1987). In light of the disposition of this appeal, his motion for a new trial also
is denied.
      AFFIRMED; MOTIONS DENIED; SANCTION WARNING ISSUED.




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