   Case: 11-10036        Document: 00511541463        Page: 1     Date Filed: 07/15/2011




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

                                                                            FILED
                                                                            July 15, 2011
                                      No. 11-10036
                                    Summary Calendar                       Lyle W. Cayce
                                                                                Clerk




SHAUN WILSON,

                                                   Plaintiff-Appellant,

versus

OFFICER RANDALL BUSTER; LUBBOCK COUNTY JAIL,

                                                   Defendants-Appellees.




                     Appeal from the United States District Court
                          for the Northern District of Texas
                                    No. 5:10-CV-9




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Shaun Wilson, Texas prisoner # 1617271, proceeding pro se, moves for
leave to appeal in forma pauperis (“IFP”) following the magistrate judge’s1 denial

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
           Wilson consented to proceed before the magistrate judge.
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                                  No. 11-10036

of his IFP motion and certification that his appeal is not taken in good faith.
Wilson seeks to appeal the dismissal of his 42 U.S.C. § 1983 complaint pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1) and (2). He alleged that Officer Ran-
dall Buster used excessive force when he pulled Wilson’s arm, which was in a
sling from a shoulder injury, through his cell bars. He alleged that the Lubbock
County Jail failed to protect him from Buster’s actions.
      We construe Wilson’s motion to proceed IFP and his appellate brief as a
challenge to the district court’s certification that the appeal is frivolous. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED.
R. APP. P. 24(a)(3). We ask only whether the appeal involves meritorious legal
issues. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Where the merits are
intertwined with the IFP decision, we may reach the merits when deciding the
IFP motion. Baugh, 117 F.3d at 202. Because the magistrate judge dismissed
the complaint both as frivolous and for failure to state a claim, our review is de
novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Wilson’s initial claim that the magistrate judge erred in dismissing his
complaint before allowing Wilson to amend is without merit, because the judge
held a hearing pursuant to Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir.
1985), in which Wilson fully elaborated on his claims. Cf. Eason v. Thaler, 14
F.3d 8, 10 (5th Cir. 1994) (vacating and remanding because the district court did
not provide plaintiff with opportunity to offer more detailed set of factual
claims). Regarding Wilson’s claim against Buster, the primary focus of an exces-
sive-use-of-force claim is the reason behind the use of force, namely, “whether
force was applied in a good-faith effort to maintain or restore discipline, or mali-
ciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7
(1992). Both the force used and the injury must be more than de minimis and
must be evaluated in the context in which the force was deployed. Id. at 9-10;
Lockett v. New Orleans City, 607 F.3d 992, 999 (5th Cir. 2010). As the district
court concluded, in light of Wilson’s allegations and the medical evidence, any

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                                  No. 11-10036

force used by Buster and any injury received by Wilson do not give rise to a
claim of a constitutional violation.
      Additionally, Wilson also cannot show that jail officials are liable for fail-
ing to protect him. Nothing in the record establishes that officials could have
prevented the incident or even knew of Buster’s alleged intentions. Accordingly,
Wilson cannot establish that jail officials knew of a “substantial risk of serious
harm” to Wilson or that they disregarded the risk by “failing to take reasonable
measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). Wilson
likewise cannot succeed on any claim of vicarious liability or respondent superior,
because under § 1983, there is no liability under these theories. Thompkins v.
Belt, 828 F.2d 298, 303 (5th Cir. 1987). Finally, because Wilson has not estab-
lished “exceptional circumstances,” his motion for appointment of counsel is de-
nied. See Santana v. Chandler, 961 F.2d 514, 515 (5th Cir. 1992); see also Ulmer
v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
      Wilson’s appeal does not involve legal points that are arguable on the mer-
its, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and his IFP motion
is DENIED, see Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997). Because the reso-
lution of Wilson’s challenge to the district court’s certification order requires
resolution of the merits of his appeal, the appeal is DISMISSED as frivolous. See
id.; 5TH CIR. R. 42.2.
      Our dismissal of this appeal and the district court’s dismissal of Wilson’s
complaint as frivolous count as two strikes under 28 U.S.C. § 1915(g). See Ade-
pegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). We caution Wilson that
if he accumulates three strikes, he will not be permitted to proceed IFP in any
civil action or appeal filed while incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).




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