IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40730 Summary Calendar

FREDDY HURLEY,

Plaintiff-Appellant,

versus

SALVADOR BUENTELLO; WAYNE SCOTT; GARY JOHNSON; ROY GARCIA; ERIC BURSE,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:00-CV-384 -------------------- March 20, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Freddy Hurley, Texas prisoner # 453088, appealed the

district court’s grant of summary judgment for the defendants in

his

action alleging a failure to protect him

from attack by another inmate on May 11, 2000.

Hurley argues that he was given no notice or opportunity to

respond to the defendants’ motion for summary judgment. He

contends that counsel was appointed for jury selection and trial

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40730 -2-

only, and that he personally should have been served with the

motion for summary judgment and have been allowed to respond

himself. Hurley’s appointed counsel was served with the

defendants’ motion for summary judgment per the district court’s

order of July 17, 2001, and counsel filed a response on behalf of

Hurley. Hurley was not deprived of notice or an opportunity to

respond to the defendants’ motion for summary judgment.

Hurley argues that the district court erred by granting

summary judgment because the record showed a genuine issue of

material fact. He takes issue with the district court’s

statement that he had not demonstrated that he informed the

defendants of the threat of an attack by another inmate at

Coffield Unit. He contends that he informed them by numerous

letters immediately preceding the attack. He also criticizes the

district court’s conclusion that he had failed to show that the

defendants had disregarded the risk to his health or safety due

to their efforts to keep him from coming in contact with other

inmates.

Hurley misinterprets the district court’s finding concerning

the threat of attack. The district court was speaking in terms

of a lack of knowledge by the defendants that this particular

attack on May 11 was threatened or imminent. Hurley is correct

that he had made the defendants aware generally of a hit on his

life. The defendants managed to protect him from this

generalized threat from 1995 to May 11, 2000. In response to No. 02-40730 -3-

Hurley’s complaint of life endangerment made on May 1, the

defendants began an investigation on May 2, held a life

endangerment hearing, and determined on May 9 or 10 that he

should be moved back to J wing, even though, according to their

interview with him, he did not identify any specific verbal

threats made against him. Before he could actually be physically

moved, the attack occurred on May 11. Hurley is correct that he

had made the defendants aware of a general threat posed to his

life from being housed on H wing, which he alleged housed many

gang members, but there is nothing in the record to show that he

informed the defendants of a specific and imminent threat.

Despite the lack of a specific threat, the defendants

investigated, held a life endangerment hearing, and determined

that Hurley should be moved back to J wing as he requested.

Unfortunately, while being escorted by a guard to the shower on

May 11, another inmate managed to shoot Hurley with a blow dart

through the food tray slot, before the defendants could arrange

for his move.

There is no genuine issue of material fact to be resolved by

a trial. Hurley is challenging the district court’s legal

conclusion that the facts did not establish deliberate

indifference. The facts in this record do not establish

deliberate indifference on the part of the defendants. Farmer v.

Brennan,

(1994)(Not every injury "by one

prisoner at the hands of another . . . translates into No. 02-40730 -4-

constitutional liability for prison officials responsible for the

victim's safety.") The defendants responded to Hurley’s

complaints, investigated, and gave him the relief requested.

They cannot be said to have been deliberately indifferent because

they delayed his move by one or two days. The district court did

not err in granting summary judgment for the defendants.

Hurley argues that Johnson, Scott, and Buentello were

collaterally estopped by Ruiz v. Johnson,

(S.D.

Tex. 1999) from relitigating that they were not responsible for

established unconstitutional prison procedures which led to his

injuries. He does not identify what these policies and

procedures are or how they led to his injury. The only specific

policy mentioned by Hurley in the district court was the policy

of having a single female guard escort him. The use of a single

guard to escort a prisoner, in itself, does not amount to a

constitutional violation. The implementation of a policy of

using male or multiple guards would not have protected Hurley

from the risk of what occurred here, being shot by a dart through

a food slot. The district court did not err in granting summary

judgment in favor of the supervisory defendants.

Hurley was advised in Hurley v. Polunsky, No. 00-40404 (5th

Cir. Sept. 28, 2000) that the district court’s dismissal as

frivolous and this court’s dismissal of his appeal as frivolous

in that case constituted two strikes under

(g).

This appeal is also dismissed as frivolous based on the No. 02-40730 -5-

duplication of many of the claims raised and dismissed in

Polunsky, and the lack of factual support for his claim of

deliberate indifference. 5TH CIR. R. 42.2. Hurley is advised

that the dismissal of this appeal as frivolous counts as his

third strike under

(g) and that he may not

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

(g).

APPEAL DISMISSED AS FRIVOLOUS;

(G) BAR

IMPOSED.