IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30669

Summary Calendar

DONALD LEE THIEKE,

Plaintiff - Appellant

v.

FRANKLIN PARISH DETENTION CENTER; JAMES TARVER; MALCOLM 

WELSH; CHAD LEE; KEVIN COBBS, also known as Kevin Cobb,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:14-CV-2947

Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.

PER CURIAM:*

Donald Lee Thieke, Louisiana prisoner #572306, proceeding pro se and 

in forma pauperis, contests the dismissal, for failure to state a claim, of his 42 

U.S.C. § 1983 action for injuries allegedly suffered when another inmate at the 

Franklin Parish Detention Center (FPDC) attacked him. Thieke asserts in his 

amended complaint the defendants (three FPDC employees and the Franklin 

 

* 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

November 28, 2016

Lyle W. Cayce

Clerk

 Case: 15-30669 Document: 00513773923 Page: 1 Date Filed: 11/28/2016
No. 15-30669

2

Parish sheriff) failed to protect him, and, accordingly, their indifference to 

Thieke’s safety and serious medical needs violated his Eighth Amendment 

rights.

The magistrate judge screened the amended complaint pursuant to 28 

U.S.C. §§ 1915(e)(2)(ii) and 1915A(b)(1), and concluded it failed to state a claim 

upon which Thieke could obtain relief. In Thieke’s hand-written objections to 

the magistrate’s recommendation, he alleged for the first time that, two 

months before the alleged attack, he and another inmate “informed” a prison 

guard (but not one of the defendants) “of the potential threat of the assailant”,

and still “nothing was done to alleviate the possible problem”. Thieke “felt [this 

failure] was negligence”. Nonetheless, the district court adopted the 

magistrate’s recommendation and dismissed the amended complaint.

Thieke’s contention that the defendants deliberately refused to act is 

raised for the first time on appeal. His amended complaint contained no such 

claim, and he represented to the district court the defendants’ failure was due 

to negligence. Because Thieke did not raise this issue in district court, review 

is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th 

Cir. 2012). Under that standard, Thieke must show a forfeited plain (clear or 

obvious) error that affected his substantial rights. Puckett v. United States, 

556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the

reversible plain error, but should do so only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings”. Id.

Negligence furnishes no basis for § 1983 liability, but deliberate 

indifference does. Farmer v. Brennan, 511 U.S. 825, 828, 835 (1994). Thieke 

did not plead the requisite culpability level, and accordingly there can be no 

clear or obvious error. Id. at 839; see also Puckett, 556 U.S. at 135; United 

States v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009).

 Case: 15-30669 Document: 00513773923 Page: 2 Date Filed: 11/28/2016
No. 15-30669

3

On the other hand, Thieke’s medical-needs claim is reviewed de novo. 

See Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). The claim on appeal 

involves screws in his jaw which, we infer, Thieke believes should be removed. 

In any event, this claim does not support a conclusion that § 1983 liability 

attaches to defendants. See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 

1995). Additionally, to the extent the claim pertains to a delay in treatment, 

the amended complaint fails to make the requisite contention of substantial 

harm. See Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2000).

AFFIRMED.

 Case: 15-30669 Document: 00513773923 Page: 3 Date Filed: 11/28/2016