United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 8, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40570
Summary Calendar
PERCY FOREMAN,
Plaintiff-Appellant,
versus
M.W. TOMBLIN, Captain; UNIDENTIFIED BLEDSOE;
UNIDENTIFIED SMITH,
Defendants-Appellees.
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PERCY FOREMAN,
Plaintiff-Appellant,
versus
M. TOMBLIN, Disciplinary Captain; UNIDENTIFIED BLEDSOE,
Correctional Officer III; UNIDENTIFIED SMITH, Correctional
Officer III; JANE DOE, Correctional Officer III; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-52
USDC No. 9:02-CV-339
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
No. 03-40570
-2-
Percy Foreman, Texas inmate # 926545, proceeding pro se and
in forma pauperis (“IFP”), appeals the dismissal as frivolous and
for failure to state a claim of his 42 U.S.C. § 1983 complaint.
Foreman contends that Officer Bledsoe failed to protect him from
injury inflicted by another inmate. He asserts that Officer
Smith delayed in providing medical treatment and that he was
denied necessary medical treatment and medication. In addition,
Foreman contends that Officer Smith allowed inmates to enter his
cell and take his personal property.
Review of the 28 U.S.C. § 1915A dismissal of a prisoner’s
civil rights complaint is de novo. Ruiz v. United States, 160
F.3d 273, 275 (5th Cir. 1998). We assume that the plaintiff’s
factual allegations are true, and we uphold the dismissal “only
if it appears that no relief could be granted under any set of
facts that could be proven consistent with the allegations.”
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998).
A failure-to-protect claim requires a prisoner to show that
he was “‘incarcerated under conditions posing a substantial risk
of serious harm, and that prison officials were deliberately
indifferent to his need for protection.’” Newton v. Black, 133
F.3d 301, 308 (5th Cir. 1998). A prison official acts with
deliberate indifference if he is “aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists,” and if he draws the inference. Newton, 133 F.3d at 308.
No. 03-40570
-3-
Foreman’s complaints, his testimony at the Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985) hearing, and his
assertions in this court do not state a failure-to-protect claim.
Foreman’s allegations establish, at most, that Officer Bledsoe
should have assumed that the inmate was going to hurt Foreman.
Foreman has not shown that Officer Bledsoe was aware of facts
from which he could have drawn the inference that the inmate was
a threat of substantial harm to Foreman’s safety and that Bledsoe
drew the inference. See Newton, 133 F.3d at 308.
Foreman’s medical treatment claims establish Foreman’s
disagreement with the care that he received but do not state a
claim of constitutional dimension based on deliberate
indifference to serious medical needs. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).
Claims of negligent or intentional deprivation of property
by state officials do not rise to the level of due process
violations if state law provides an adequate post-deprivation
remedy. Hudson v. Palmer, 468 U.S. 517, 533-34 (1984); Murphy v.
Collins, 26 F.3d 541, 543-44 (5th Cir. 1994). Texas provides an
adequate post deprivation remedy. Murphy, 26 F.3d at 543-44.
Foreman has not stated a claim based on the loss of his property.
Foreman has abandoned his claims concerning the denial of
due process by failing to assert them in this court. Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
No. 03-40570
-4-
Foreman has not shown that the magistrate judge abused
discretion by denying his motion to withdraw consent to the
magistrate judge’s disposition of his case. Valid consent to
trial before a magistrate judge waives the right to trial before
an Article III judge, and such consent will be withdrawn only for
good cause. Carter v. Sea Land Services, Inc., 816 F.2d 1018,
1021 (5th Cir. 1987). Foreman has not alleged prejudice as a
result of the magistrate judge’s disposition of his case. He has
not shown good cause for the withdrawal of his consent. See id.
Foreman has not demonstrated that exceptional circumstances
warranted the appointment of counsel in his case. See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Foreman’s claims
are not unusually complex, and he has demonstrated the ability to
file motions and present his case adequately. The denial of
appointed counsel was not an abuse of discretion. Ulmer, 691
F.2d at 212.
Accordingly, the judgment is AFFIRMED. The dismissal of
Foreman’s complaint 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). Foreman is cautioned that once he accumulates three
strikes, he may not proceed IFP 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 28
U.S.C. § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.