De La Garza v. Stringfellow

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 9, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 03-50261
Summary Calendar

ALBERT DE LA GARZA,

Plaintiff-Appellant,

versus

A.M. STRINGFELLOW; GARY JOHNSON, Executive Director,
Texas Department of Criminal Justice, Institutional Division;
JANIE COCKRELL, Director, Texas Department of Criminal Justice,
Institutional Division; HECTOR BARRERA; TERRY FOSTER, SR.;
DAN C. LEWIS; DELOIS TARVER; CALVIN DAVIS; MARTIN COBRRUBIAS;
PATRICIA L. CHARLES,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Texas
(A-02-CV-257-JN)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Albert De La Garza, Texas prisoner # 645460, appeals the Rule

12(b)(6) dismissal of his 42 U.S.C. § 1983 action. The dismissal

is reviewed de novo. (De La Garza’s motions for summary judgment,

sanctions, and to strike Appellees’ brief are DENIED.)

*
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that this opinion should not be published and is not precedent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.
 De La Garza’s allegations concerning staff shortages at TDCJ

do not constitute an Eighth Amendment violation; for example, he

has not shown that the claimed staff shortages have led to any

specific problems with security or inmates’ access to food, medical

care, or sanitation. See Farmer v. Brennan, 511 U.S. 825, 832-33

(1994); see also Woods v. Edwards, 51 F.3d 577, 581 (5th Cir.

1995).

De La Garza also asserts the TDCJ must comply with the

staffing requirements of Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D.

Tex. 1999), reversed and remanded, 243 F. 3d 941 (5th Cir. 2001),

on remand, 154 F. Supp. 2d 975, 989 (S.D. Tex. 2001).

Noncompliance with Ruiz is not actionable under § 1983. See Green

v. McKaskle, 788 F.2d 1116, 1122 (5th Cir. 1986).

De La Garza has not shown a constitutional violation based on

the allegedly inadequate response to his grievances, being left

unsupervised on several occasions, or being without water for one

and a half hours. See Woods, 51 F.3d at 581; see also Daniels v.

Williams, 474 U.S. 327, 336 (1986)(negligence does not amount to a

constitutional violation). De La Garza’s claim that he was

verbally abused by a prison guard does not give rise to a § 1983

action. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997). Further, De La Garza has not shown that prison officials

were deliberately indifferent to a risk of attack by other inmates;

they responded immediately by preparing a life endangerment report

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and granting his request for new housing. See Farmer, 511 U.S. at

847; Woods, 51 F.3d at 581.

For the first time on appeal, De La Garza contends that the

magistrate judge and district judge were biased. De La Garza

failed to present this contention at a reasonable time in the

litigation. See Hollywood Fantasy Corp. v. Gabor, 151 F.3d 203,

216 (5th Cir. 1998).

AFFIRMED; ALL OUTSTANDING MOTIONS DENIED

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