IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40967

Summary Calendar

TEODORO GONZALEZ,

Plaintiff-Appellant

v.

OFFICER JORDAN,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:11-CV-209

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Teodoro Gonzalez, Texas prisoner # 1530151, appeals the district court’s 

dismissal of his 42 U.S.C. § 1983 complaint, which the district court concluded 

pursuant to 28 U.S.C. § 1915A was frivolous and failed to state a claim. 

Gonzalez argues that Officer Jordan acted with deliberate indifference to his 

safety because she “rushed” him while escorting him to a hearing, despite the 

fact that his hands were cuffed behind his back and his legs were shackled. 

* 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

FILED

April 20, 2015

Lyle W. Cayce

Clerk

 

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No. 14-40967

Gonzalez points out that Jordan failed to comply with prison procedures for 

escorting restrained prisoners and maintains that she confessed to “rushing” 

him by admitting that she had told him to “slow down.” In addition, Gonzalez 

asserts that Jordan’s failure to avert injury constitutes a due process violation.

Although Jordan’s conduct could be categorized as negligent, the 

complaint and Gonzalez’s more definite statement failed to allege that Jordan 

was aware of any facts from which an excessive risk of harm could be drawn or 

that she actually drew such an inference. See Farmer v. Brennan, 511 U.S. 

825, 839 (1994). Gonzalez’s conclusional allegations are insufficient to 

establish deliberate indifference. See Oliver v. Scott, 276 F.3d 736, 741 (5th 

Cir. 2002). Jordan’s failure to comply with prison procedures, without more, 

does not constitute evidence of a constitutional violation. See Hernandez v. 

Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Additionally, Gonzalez has not 

established that Jordan’s actions rose to the level of an “atypical and 

significant hardship . . . in relation to the ordinary incidents of prison life,” as 

is required to show a due process violation. Sandin v. Conner, 515 U.S. 472, 

484 (1995).

Because Gonzalez’s claims lacked an arguable basis in law and failed to 

state a facially plausible claim for relief, the district court did not err in 

dismissing his civil rights complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009); Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009). Consequently, 

the judgment of the district court is affirmed. The district court’s dismissal of 

Gonzalez’s complaint as frivolous and for failure to state a claim counts as a 

strike pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 

383, 387-88 (5th Cir. 1996). Gonzalez is warned that if he accumulates three 

strikes, he will not be permitted to proceed in forma pauperis in any civil action 

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No. 14-40967

or appeal filed while he is incarcerated or detained in any facility unless he is 

under imminent danger of serious physical injury. See § 1915(g).

AFFIRMED; SANCTION WARNING ISSUED.

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