United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-11254
Summary Calendar
MICHAEL JONATHAN CARLSON,
Plaintiff-Appellant,
versus
KIM HOLTON, Parole Officer, Fort Worth Parole
Office, District III; SUE BUSSA, Director, GEO
Halfway House, Fort Worth, Texas; DIRECTOR TEXAS
DEPARTMENT OF CRIMINAL JUSTICE PAROLE DIVISION,
AUSTIN, TEXAS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-725
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Before HIGGINBOTHAM, BARKSDALE and GARZA, Circuit Judges.
PER CURIAM:*
Michael Jonathan Carlson, now Texas prisoner # 328076,
appeals the district court’s dismissal of his 42 U.S.C. § 1983
complaint for failure to state a claim upon which relief could be
granted. See 28 U.S.C. § 1915A. Carlson’s complaint argued that
the defendants violated his substantive due process rights while
he was on parole and living in a halfway house.
*
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this opinion should not be published and is not precedent except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. 06-11254
-2-
We review the district court’s dismissal of Carlson’s § 1983
complaint de novo. Ruiz v. United States, 160 F.3d 273, 275 (5th
Cir. 1998). Assuming, arguendo only, that the State had a duty
to assume responsibility for Carlson’s safety and well-being
while he was living in the halfway house, see Jacobs v. Ramirez,
400 F.3d 105, 106 (2d Cir. 2005), Carlson must still show that
the named defendants were deliberately indifferent to an
excessive risk of harm to his health and safety. See DeShaney v.
Washington, 489 U.S. 189, 199-200 (1989); Breen v. Texas A&M
University, 485 F.3d 325, 332- 37 (5th Cir. 2007); McClendon v.
City of Columbia, 305 F.3d 314, 324-26 & n.8 (5th Cir. 2002).
According to Carlson’s complaint, he was in the halfway
house from April 21, 2005, until May 12, 2005, or a total of
three weeks before he absconded. During this short time, he
claims that he lived with drug users which contravened a
condition of his parole, that he did not receive counseling or
electronic monitoring as required by his parole conditions, and
that residents were not able to find meaningful employment. He
claims he told Sue Bussa, the director of the halfway house, and
Kim Holton, his parole officer, of these complaints and that his
complaints were ignored. Carlson’s allegations, taken as true,
show only that, while he was living in the halfway house, he was
unable to satisfy all of his parole conditions and was
unsatisfied with his job opportunities, not that the defendants
were deliberately indifferent to an excessive risk of harm to his
No. 06-11254
-3-
health and safety. We emphasize that Carlson did not allege that
any of the drug users in the house harmed him or forced him to do
drugs.
We affirm the lower court’s dismissal of Carlson’s
complaint. Carlson is warned that the district court’s dismissal
of his complaint for failure to state a claim upon which relief
could be granted is one strike for purposes of 28 U.S.C. §
1915(g) and 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
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996);
§ 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.