599 F. App'x 231
5th Cir.2015Background
- Krieg, a Texas prisoner, appeals the district court's frivolous-dismissal of his 42 U.S.C. § 1983 complaint alleging Eighth Amendment deliberate indifference.
- The dismissal was under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous after screening the complaint.
- Krieg contends deliberate indifference related to a sexual assault and related safety concerns, and also asserts PREA claims.
- The district court found Krieg failed to allege facts showing defendants knew of and inferred a substantial risk to health or safety.
- Krieg testified at a Spears hearing that defendants had no knowledge before a Unit Classification Committee meeting.
- The court largely addressed issues raised below and noted arguments raised for the first time on appeal were not considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deliberate indifference sufficiency | Krieg contends defendants were aware of risk and drew an inference of harm. | Krieg failed to show knowledge or inference of risk prior to events; no deliberate indifference proven. | No arguable basis; district court correctly dismissed as frivolous. |
| PREA private right of action | PREA claims support a private action for prison rape. | PREA does not create a private right of action for inmates. | PREA claims properly dismissed as frivolous. |
| Waiver of claims raised on reconsideration | Appellate briefing should consider reconsideration arguments. | Issues raised for first time on reconsideration are waived. | Waived; not considered on appeal. |
| Appointment of counsel | Krieg seeks appointment of counsel due to ongoing proceedings. | No exceptional circumstance warranting appointment exists. | Denied. |
Key Cases Cited
- Geiger v. Jowers, 404 F.3d 371 (5th Cir. 2005) (frivolous screening standard under § 1915(e)(2))
- Samford v. Dretke, 562 F.3d 674 (5th Cir. 2009) (frivolous complaint standard; lack of arguable basis in law or fact)
- Rogers v. Boatright, 709 F.3d 403 (5th Cir. 2013) (deliberate indifference standard; knowledge and inference of risk)
- Sullo & Bobbitt, P.L.L.C. v. Milner, 765 F.3d 388 (5th Cir. 2014) (arguments not raised below cannot be asserted on appeal; waiver)
- Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501 F.3d 436 (5th Cir. 2007) (motion for reconsideration; issues raised there are generally not reconsidered)
- Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) ( Spears hearing standard for evaluating claims)