IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60960

Summary Calendar

DELMAR EARL SHELBY,

Plaintiff-Appellant

v.

Captain NINA ENLERS; Sergeant QUINTON WILLIAMS,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:09-CV-221

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

*

Delmar Shelby, Mississippi prisoner # 13089, proceeding pro se, moves for

leave to appeal in forma pauperis (IFP) following the district court’s denial of his

IFP motion and certification that his appeal is not taken in good faith. Shelby

seeks to appeal the grant of summary judgment in favor of the defendants and

the dismissal with prejudice of his 42 U.S.C. § 1983 suit, alleging that Captain

Enlers used excessive force when she slapped him on his ears causing pain and

diminished hearing, that Sergeant Williams failed to protect him because he did

United States Court of Appeals

Fifth Circuit

F I L E D

June 20, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-60960

not intervene to stop her, and that both were deliberately indifferent to his

medical needs by failing to allow him to see a doctor, all in violation of the

Eighth Amendment. We construe Shelby’s motion to proceed IFP and his

appellate brief as a challenge to the district court’s certification that the appeal

is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.

§ 1915(a)(3); FED. R. APP. P. 24(a)(3). We ask only whether the appeal involves

meritorious legal issues. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

Where the merits are intertwined with the IFP decision, we may reach the

merits when deciding the IFP motion. Baugh, 117 F.3d at 202. We review de

novo a district court’s grant of summary judgment. Nickell v. Beau View of

Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011).

The primary focus of an excessive-use-of-force claim is the reason behind

the use of force, namely, “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.”

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). However, the force used and the

injury generally must be more than de minimis, though even a de minimis use

of force is actionable if it is “repugnant to the conscience of mankind.” Id. at 9-10

(internal quotation marks and citation omitted); Glenn v. City of Tyler, 242 F.3d

307, 314 (5th Cir. 2001). As the district court concluded, in light of Shelby’s

allegations and the medical evidence, any force that may have been used by

Captain Enlers resulted in an injury which, even giving credence to Shelby’s

account of the original altercation, is not sufficient to give rise to a claim of a

constitutional violation.

If the events in question do not give rise to a claim against Enlers, then

the claim against Sergeant Williams for “failure to protect” also fails. Further,

although Shelby alleges that Sergeant Williams saw the incident, nothing in the

record establishes that Sergeant Williams could have prevented the incident or

even knew of Captain Enlers’s alleged intentions. Accordingly, Shelby cannot

establish that Sergeant Williams knew of a “substantial risk of serious harm” to

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Shelby or that Sergeant Williams disregarded the risk by “failing to take

reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).

As for the denial of medical treatment, Shelby’s medical records show that

he received medical care the day after the alleged assault and again a few days

after that. A delay in treatment does not violate the Eighth Amendment unless

there has been deliberate indifference that results in substantial harm.

Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). There is no evidence

that any purported delay in treating Shelby resulted in any harm, substantial

or otherwise.

Shelby cannot succeed on any claim of vicarious liability or respondeat

superior because under § 1983, there is no liability under these theories.

Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Moreover, because there

was no constitutional deprivation, there can be no supervisory liability. See id.

at 304. Although Shelby argues that the defendants are not entitled to qualified

immunity, we need not reach that issue because he cannot establish a

constitutional violation. See Wells v. Bonner, 45 F.3d 90, 93-94 (5th Cir.1995).

Finally, along with his federal civil rights claims, Shelby raised state-law

claims. The district court declined to exercise supplemental jurisdiction over

these claims and dismissed the entire complaint with prejudice. Shelby’s federal

claims are without merit, and thus the court did not abuse its discretion in

declining to exercise supplemental jurisdiction over the state-law claims. 28

U.S.C. § 1367(c)(3); Rhyne v. Henderson Cnty., 973 F.2d 386, 395 (5th Cir. 1992).

However, the court should have dismissed those claims without prejudice. See

Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999).

Accordingly, Shelby’s motion to proceed IFP is GRANTED; the judgment

is MODIFIED to be without prejudice as to the state-law claims; and the

judgment is AFFIRMED AS MODIFIED.

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