Filed: Jun. 14, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-60357 Conference Calendar BERNARD C. RHEM, Plaintiff-Appellant, versus MARION COUNTY SHERIFF DEPARTMENT; RICHARD STRINGER, Sheriff; MARION COUNTY BOARD OF SUPERVISORS; FLOYD MOORE, Supervisor; LLOYD FORTENBERRY, Supervisor; JOHNNY GLEN STRINGER; BILLY RAY MCKENZIE, Supervisor; CALVIN NEWSOM; “UNKNOWN” BEDWELL, Inmate Trustee; KELVIN LOAFTEN, State Inmate; ALL DEFENDANTS, Defendants-Appellees. - Appeal from the United States Distr
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-60357 Conference Calendar BERNARD C. RHEM, Plaintiff-Appellant, versus MARION COUNTY SHERIFF DEPARTMENT; RICHARD STRINGER, Sheriff; MARION COUNTY BOARD OF SUPERVISORS; FLOYD MOORE, Supervisor; LLOYD FORTENBERRY, Supervisor; JOHNNY GLEN STRINGER; BILLY RAY MCKENZIE, Supervisor; CALVIN NEWSOM; “UNKNOWN” BEDWELL, Inmate Trustee; KELVIN LOAFTEN, State Inmate; ALL DEFENDANTS, Defendants-Appellees. - Appeal from the United States Distri..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60357
Conference Calendar
BERNARD C. RHEM,
Plaintiff-Appellant,
versus
MARION COUNTY SHERIFF DEPARTMENT;
RICHARD STRINGER, Sheriff; MARION
COUNTY BOARD OF SUPERVISORS; FLOYD
MOORE, Supervisor; LLOYD FORTENBERRY,
Supervisor; JOHNNY GLEN STRINGER;
BILLY RAY MCKENZIE, Supervisor; CALVIN
NEWSOM; “UNKNOWN” BEDWELL, Inmate Trustee;
KELVIN LOAFTEN, State Inmate; ALL DEFENDANTS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:98-CV-362-PG
--------------------
June 14, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Bernard C. Rhem, Mississippi prisoner #75896, appeals the
district court’s dismissal for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), of his pro se, in
forma pauperis (IFP) 42 U.S.C. § 1983 civil rights complaint
against the Marion County Sheriff’s Department, Sheriff Richard
*
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that this opinion should not be published and is not precedent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. 00-60357
-2-
Stringer, the Marion County Board of Supervisors, five members of
the Marion County Board of Supervisors, inmate Kelvin Loaften,
and inmate trusty “Bedwell.” In his complaint, Rhem averred that
he was beaten by fellow inmates and that the defendants failed to
prevent the attack and failed to provide timely medical
treatment. We have reviewed the record and the briefs on appeal
and conclude that the district court did not err in dismissing
the complaint for failure to state a claim upon which relief
could be granted. Black v. Warren,
134 F.3d 732, 733 (5th Cir.
1998); see 28 U.S.C. § 1915(e)(2)(B)(ii).
Rhem does not argue that the district court erred in
dismissing the claims against Loaften and trusty Bedwell on the
basis that they were not state actors, and he does not address
the district court’s dismissal of the claims against the Marion
County Sheriff’s Department. Thus, he has abandoned the issues
on appeal. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir.
1993).
The district court did not err in finding Rhem’s claim that
he was denied adequate medical treatment to be without merit in
light of the record and Rhem’s testimony at the Spears** hearing
that Rhem was transported and treated within a short time after
he was attacked. The district court also did not err in finding
that Rhem failed to show that the Marion County Board of
Supervisors had a policy or custom of denying medical care to
pretrial detainees.
**
Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985).
No. 00-60357
-3-
The district court was correct in rejecting Rhem’s failure-
to-protect claim in light of the fact that (1) Rhem failed to
show that any of the defendants were personally involved in the
attack; (2) Rhem provided no evidence to suggest that the
defendants were aware of facts from which they could infer that
the other inmates presented a substantial risk of harm to him;
and (3) Rhem failed to show that the Marion County Board of
Supervisors had a custom or policy of failing to prevent pretrial
detainees from harm. The judgment of the district court is
AFFIRMED.
As pointed out by the district court, the dismissal of the
complaint for failure to state a claim counts as a “strike” for
purposes of 28 U.S.C. § 1915(g). Rhem is cautioned that once he
accumulates three strikes, he will not be able to proceed IFP in
any civil action or appeal while he is imprisoned “unless [he] is
under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g).
AFFIRMED.