Reid ZEISING; Dixie Restaurant Group, L.L.C., Plaintiffs-Appellants v. Michael A. SHELTON; Shelton Restaurant Group, L.L.C., Defendants-Appellees.
No. 14-30958.
United States Court of Appeals, Fifth Circuit.
April 14, 2015.
231
Bradley Loy Drell, Charles S. Weems, III, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants-Appellees.
Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
The judgment of the district court is affirmed because an enforceable oral contract was not mutually agreed upon by these parties. The acquisition, purchase and terms, of the 29 Popeye‘s restaurants, how they would be operated and what—if any—consideration and role Zeising would contribute, was left wide open. At best, it could be said only that they agreed to agree, but that is not an enforceable contract under Louisiana or Georgia law. See McNeely v. Town of Vidalia, 157 La. 338, 102 So. 422, 423 (1924); Moss v. Moss, 265 Ga. 802, 463 S.E.2d 9 (1995). Likewise, Shelton did not have a contract with Dixie, nor did he owe it a fiduciary duty.
AFFIRMED.
William Henry KRIEG, Plaintiff-Appellant v. Stephen L. STEELE, Safe Prison Program Sergeant; Timothy S. Hooper, Building Captain; Richard G. Leal, Assistant Warden; Eddie L. Wheeler, Senior Warden, Defendants-Appellees.
No. 13-11402
United States Court of Appeals, Fifth Circuit,
April 15, 2015.
William Henry Krieg, Huntsville, TX, pro se.
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
William Henry Krieg, Texas prisoner # 1366694, appeals from the dismissal as frivolous of his
A claim is frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory. . . . A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless.” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).
A prison official is liable under the Eighth Amendment when, inter alia, he is deliberately indifferent to a prisoner‘s health and safety. Id. “To establish deliberate indifference, the prisoner must show that the defendants (1) were aware of facts from which an inference of an excessive risk to the prisoner‘s health or safety could be drawn and (2) that they actually drew an inference that such potential for harm existed.” Id. at 407-08 (internal quotation marks and citation omitted). Krieg has failed to allege facts supporting a finding of deliberate indifference surrounding the sexual assault insofar as he testified during his Spears1 hearing that the appellees had no knowledge of it prior to the Unit Classification Committee meeting. Additionally, he makes no showing and does not even allege that the appellees were aware that he would attempt suicide or drew the inference that such a possibility of harm existed either because he was emotionally traumatized or because he wanted to transfer to another unit. See Rogers, 709 F.3d at 407-08. To the extent that Krieg argues that the appellees displayed deliberate indifference to his safety and caused psychological injury by ordering him returned to the general population after he had “snitched” on a member of the Crips gang, this argument was raised for the first time in his appellate brief; the magistrate judge addressed Krieg‘s allegations of deliberate indifference only as they related to the sexual assault per his complaint and Spears testimony. “[A]n argument not raised before the district court cannot be asserted for the first time on appeal.” Sullo & Bobbitt, P.L.L.C. v. Milner, 765 F.3d 388, 393 (5th Cir. 2014) (internal quotation marks and citation omitted).
Insofar as Krieg argues that his rights under the Prison Rape Elimination Act of 2003 (PREA),
Krieg‘s other claims either were never raised in the district court or were raised only in a motion for reconsideration of the district court‘s judgment. “[G]enerally speaking, we will not consider an issue raised for the first time in a Motion for Reconsideration.” Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501 F.3d 436, 442 (5th Cir. 2007) (internal quotation marks and citation omitted). We therefore deem these claims to be waived.
Krieg has also moved for appointment of counsel. Because there exist no exceptional circumstances warranting such an appointment, his motion is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.