     Case: 09-50684     Document: 00511142393          Page: 1    Date Filed: 06/15/2010




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

                                                  FILED
                                                                            June 15, 2010
                                     No. 09-50684
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

PERRY HEMPHILL,

                                                   Plaintiff-Appellant
v.

SHERIFF GREG HAMILTON,

                                                   Defendant-Appellee


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:08-CV-769


Before D EMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Perry Hemphill, Texas prisoner # 1417832, appeals the district court’s
order dismissing his 42 U.S.C. § 1983 complaint as frivolous. Hemphill alleged
that his constitutional rights were violated because he was injured when he
slipped and fell on rainwater while he was a pretrial detainee in the Travis
County Correctional Complex. Hemphill argues that the district court erred by
dismissing his complaint without giving him an opportunity to remedy any
defects in his pleadings. He further argues that the facts establish that the
guards were deliberately indifferent to the hazardous conditions in the jail and


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50684    Document: 00511142393 Page: 2          Date Filed: 06/15/2010
                                 No. 09-50684

that, as an employer, Sheriff Hamilton and the Travis County Correctional
Complex are liable for the guards’ actions.
      The record before the district court, including the more definite statement,
suggested that Hemphill had pleaded his best case and that leave to amend was
not necessary because the facts underlying the complaint did not rise to the level
of a viable constitutional claim. See Brewster v. Dretke, 587 F.3d 764, 768 (5th
Cir. 2009), petition for cert. filed, (Jan. 21, 2010) (No. 09-9950); see also Jones v.
Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999).
      Hemphill has not identified an explicit or de facto jail policy or restriction
that resulted in a deprivation of his constitutional rights. See Shepherd v.
Dallas County, 591 F.3d 445, 452 (5th Cir. 2009).           His claims against the
defendants in their capacity as employers of the guards are not cognizable.
Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005).
Moreover, the facts alleged by Hemphill, at most, constitute negligence on the
part of the guards. Hare v. City of Corinth, MS, 74 F.3d 633, 639 (5th Cir. 1996).
Because negligence does not give rise to a constitutional violation, and a
supervisor may not be held liable under theories of vicarious or respondeat
superior liability, the district court did not abuse its discretion by dismissing
Hemphill’s complaint. Daniels v. Williams, 474 U.S. 327, 332-336 (1986); Estate
of Davis, 406 F.3d at 381.
      After the district court entered final judgment, Hemphill made a second
motion to amend, seeking leave to add a negligence claim under state law. The
district court denied Hemphill’s motion. To show that the district court’s denial
was an abuse of discretion, Hemphill must “‘clearly establish[] that he could not
reasonably have raised [his new claim] prior to the trial court’s merits ruling.’”
Vielma v. Eureka Co., 218 F.3d 458, 468-69 (5th Cir. 2000) (quoting Briddle v.
Scott, 63 F.3d 364, 380 (5th Cir. 1995)). Hemphill has not made such a showing.
Accordingly, the district court did not abuse its discretion in denying him leave
to make a post-judgment amendment. See id.

                                          2
   Case: 09-50684   Document: 00511142393 Page: 3        Date Filed: 06/15/2010
                                No. 09-50684

      Hemphill is advised that the district court’s dismissal of his complaint as
frivolous 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). Hemphill previously received a
strike under § 1915. See Hemphill v. Williams, No. 1:00-CV-186 (W.D. Tex. July
12, 2000). Hemphill is advised that he has now accumulated two strikes, and if
he accumulates a third strike, he will no longer be allowed to proceed IFP in any
civil action or appeal filed while he is detained or incarcerated in any facility
unless he is in imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




                                       3
