     Case: 10-60960     Document: 00511513907          Page: 1    Date Filed: 06/20/2011




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

                                                 FILED
                                                                            June 20, 2011
                                     No. 10-60960
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DELMAR EARL SHELBY,

                                                   Plaintiff-Appellant

v.

Captain NINA ENLERS; Sergeant QUINTON WILLIAMS,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 2:09-CV-221


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Delmar Shelby, Mississippi prisoner # 13089, proceeding pro se, moves for
leave to appeal in forma pauperis (IFP) following the district court’s denial of his
IFP motion and certification that his appeal is not taken in good faith. Shelby
seeks to appeal the grant of summary judgment in favor of the defendants and
the dismissal with prejudice of his 42 U.S.C. § 1983 suit, alleging that Captain
Enlers used excessive force when she slapped him on his ears causing pain and
diminished hearing, that Sergeant Williams failed to protect him because he did

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-60960

not intervene to stop her, and that both were deliberately indifferent to his
medical needs by failing to allow him to see a doctor, all in violation of the
Eighth Amendment.       We construe Shelby’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); F ED. R. A PP. 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. We review de
novo a district court’s grant of summary judgment. Nickell v. Beau View of
Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011).
      The primary focus of an excessive-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 maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). However, the force used and the
injury generally must be more than de minimis, though even a de minimis use
of force is actionable if it is “repugnant to the conscience of mankind.” Id. at 9-10
(internal quotation marks and citation omitted); Glenn v. City of Tyler, 242 F.3d
307, 314 (5th Cir. 2001). As the district court concluded, in light of Shelby’s
allegations and the medical evidence, any force that may have been used by
Captain Enlers resulted in an injury which, even giving credence to Shelby’s
account of the original altercation, is not sufficient to give rise to a claim of a
constitutional violation.
      If the events in question do not give rise to a claim against Enlers, then
the claim against Sergeant Williams for “failure to protect” also fails. Further,
although Shelby alleges that Sergeant Williams saw the incident, nothing in the
record establishes that Sergeant Williams could have prevented the incident or
even knew of Captain Enlers’s alleged intentions. Accordingly, Shelby cannot
establish that Sergeant Williams knew of a “substantial risk of serious harm” to

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                                 No. 10-60960

Shelby or that Sergeant Williams disregarded the risk by “failing to take
reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
      As for the denial of medical treatment, Shelby’s medical records show that
he received medical care the day after the alleged assault and again a few days
after that. A delay in treatment does not violate the Eighth Amendment unless
there has been deliberate indifference that results in substantial harm.
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). There is no evidence
that any purported delay in treating Shelby resulted in any harm, substantial
or otherwise.
      Shelby cannot succeed on any claim of vicarious liability or respondeat
superior because under § 1983, there is no liability under these theories.
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Moreover, because there
was no constitutional deprivation, there can be no supervisory liability. See id.
at 304. Although Shelby argues that the defendants are not entitled to qualified
immunity, we need not reach that issue because he cannot establish a
constitutional violation. See Wells v. Bonner, 45 F.3d 90, 93-94 (5th Cir.1995).
      Finally, along with his federal civil rights claims, Shelby raised state-law
claims. The district court declined to exercise supplemental jurisdiction over
these claims and dismissed the entire complaint with prejudice. Shelby’s federal
claims are without merit, and thus the court did not abuse its discretion in
declining to exercise supplemental jurisdiction over the state-law claims. 28
U.S.C. § 1367(c)(3); Rhyne v. Henderson Cnty., 973 F.2d 386, 395 (5th Cir. 1992).
However, the court should have dismissed those claims without prejudice. See
Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999).
      Accordingly, Shelby’s motion to proceed IFP is GRANTED; the judgment
is MODIFIED to be without prejudice as to the state-law claims; and the
judgment is AFFIRMED AS MODIFIED.




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