     Case: 12-31191       Document: 00512392636         Page: 1     Date Filed: 10/01/2013




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

                                                                            FILED
                                                                          October 1, 2013
                                     No. 12-31191
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ALFRED SILVA,

                                                  Plaintiff-Appellant

v.

RICKY L. MOSES; WARDEN GALBREATH; RON ROBERTS; POLICE JURY
OF BEAUREGARD PARISH; SHERIFFS OFFICE BEAUREGARD PARISH;
GEORGIA CASUALTY INSURANCE COMPANY,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:11-CV-1233


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Alfred Silva, Louisiana prisoner # 112315, has appealed the district court’s
judgment dismissing his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) as frivolous and for failure to state a claim upon
which relief may be granted. We review de novo the dismissal of his complaint,
accepting the facts alleged in the complaint as true and viewing them in the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-31191

light most favorable to the plaintiff. See Green v. Atkinson, 623 F.3d 278, 279
(5th Cir. 2010).
      Silva alleged that while he was a pretrial detainee in the Beauregard
Parish Jail, an unknown individual threw an acidic liquid in his face. According
to Silva, the deputy had him lie down to wait for treatment rather than washing
off the liquid because the jail had no staff on duty who had been trained in first
aid. As a result, Silva suffered extreme pain for approximately 35 to 40 minutes
while waiting for the ambulance and was left permanently blinded. Silva also
asserted that the defendants were deliberately indifferent to his serious medical
needs, both through the inadequate treatment by the sheriff’s deputies and
through DeRidder City Sheriff Ricky L. Moses’s and Beauregard Parish Jail
Warden Galbreath’s failure to have a staff member on duty who was trained in
administering first aid as required by Louisiana regulations.
      Because he was a pretrial detainee at the time of the incident, Silva’s
constitutional claims arise under the Due Process Clause of the Fourteenth
Amendment, which—like the Eighth Amendment—places a duty on the State
to protect against harm to persons in its confinement. See Hare v. City of
Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc). Because he alleges an
“episodic act or omission” of a jail official, Silva must show that the official acted
with deliberate indifference to his constitutional rights. See id. at 636 (citing
Farmer v. Brennan, 511 U.S. 825 (1994)). In the context of medical needs, the
deliberate indifference standard is met when an official “knows of and disregards
an excessive risk to inmate health or safety; the 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.” Farmer, 511 U.S. at 837.
      As to the sheriff’s deputies, Silva alleges no facts to show that they knew
of or inferred a risk of permanent blindness to Silva and were indifferent to that
risk, or that they failed to call or delayed calling an ambulance. See Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). He thus has failed to show that the

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                                  No. 12-31191

deputies displayed deliberate indifference to his serious medical needs. See
Hare, 74 F.3d at 636.
      Silva’s allegations regarding Warden Galbreath and Sheriff Moses are
equally unavailing.     He contends that they failed to comply with state
regulations requiring personnel trained in basic first aid to be assigned to every
shift and that, in failing to so assign personnel, the two were deliberately
indifferent to the excessive risk to his health or safety posed by a medical
emergency such as the attack. Silva alleged no personal involvement by the
Warden and the Sheriff in the attack and in the provision, or lack, of medical
care. There is generally no vicarious supervisory liability in a § 1983 case, see
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987), and Silva’s allegations that
the Sheriff and the Warden had a policy not to staff every shift with personnel
trained in basic first aid are entirely speculative and thus do not save his claim
from dismissal, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
      Additionally, Silva asserts that the defendants failed to protect him.
While prison officials have a constitutional duty to protect prisoners from
violence by other inmates, Silva must show for a failure-to-protect claim that he
was incarcerated under “conditions posing a substantial risk of serious harm and
that the prison officials acted with deliberate indifference to [his] safety.”
Johnson v. Johnson, 385 F.3d 503, 524 (5th Cir. 2004) (internal quotation marks
and citation omitted).      The vague contention by Silva that, although the
defendants knew of previous violent incidents, they declined to take unspecified
protective measures to prevent future attacks such as the one on him, does not
show that any risk to Silva was clear to the officers. See Farmer, 511 U.S. at
842. Silva thus fails to show that the district court erred in dismissing his
failure-to-protect claim.
      Similarly, Silva’s conclusory allegations that the defendants failed to
properly train or supervise staff with regard to inmate searches and first aid do
not state a claim that Galbreath and Moses knew of and disregarded conditions

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posing a risk of serious harm to Silva. See Roberts v. City of Shreveport, 397
F.3d 287, 292 (5th Cir. 2005). Moreover, because Silva failed to allege facts
showing a violation of his constitutional rights by the deputies, he concomitantly
failed to allege facts showing liability on the parts of Galbreath and Moses for
their alleged failure to supervise or train those deputies. See Roberts, 397 F.3d
at 292.
      Silva contends that, after the incident, jail officials hindered his access to
the courts because he was denied legal materials for two months while placed in
segregation. This bare contention, offered without argument or citation to
authority, is insufficient to show that Silva was denied a reasonably adequate
opportunity to file his claims. See Lewis v. Casey, 518 U.S. 343, 356 (1996).
Silva has shown no error in the district court’s dismissal of his claim that he was
denied access to legal services.
      The district court’s dismissal of Silva’s § 1983 complaint 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, 387-88 (5th Cir. 1996). Silva is
CAUTIONED that if he accumulates three strikes, he will not be able to 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).
      AFFIRMED; SANCTION WARNING ISSUED




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