De La Garza v. Stringfellow, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 9, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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.)

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2
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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3
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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