1 Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10133

Summary Calendar

BILLY WAYNE HORTON,

Plaintiff-Appellant,

VERSUS

JIM BOWLES, Sheriff of Dallas County, ET AL.,

Defendants-Appellees.

Appeals from the United States District Court

For the Northern District of Texas

(3:94-CV-1744-R)

August 25, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:1

BACKGROUND

Billy Wayne Horton, currently a Texas Department of Criminal

Justice (TDCJ) prisoner, filed a 42 U.S.C. § 1983 complaint against

Jim Bowles, the Dallas County sheriff, and other prison personnel,
 

2 Horton alleged that he was transferred to the county jail

because a bench warrant was issued due to a reversal of his

criminal conviction. The magistrate judge stated in his report

that Horton had been convicted of aggravated kidnapping and that

his conviction had been affirmed on appeal. Despite his assertion

that his conviction was reversed, Horton, an experienced litigator,

alleged that he is entitled to relief under the Eighth Amendment

and he has not alleged that he is a pretrial detainee. Horton

remains incarcerated in a state prison facility. Further, staff

counsel has previously worked on Horton's appeal from the denial of

habeas relief in connection with a burglary conviction. In his

pleadings, Horton alleged that he was to be released from jail on

the burglary conviction in September 1994. Horton was incarcerated

in the Dallas jail between July 1993 and January 1994. Thus, it

appears that Horton was a "convicted" prisoner at the time that he

was incarcerated in the Dallas County jail. 

2

alleging that they failed to provide him with adequate protection

during his incarceration at the Dallas County jail.2 Horton

complains about incidents which occurred in each of the six "tanks"

where he was housed during his approximately six months of

incarceration at the Dallas County jail. 

Tank 2-P-7

Horton alleged the following incidents occurred while he was

housed in Tank 2-P-7. Horton was assaulted by another inmate

because of a disagreement about a sleeping area. Horton was

threatened a few weeks later by the same inmate, and Horton

reported it to an unidentified officer, who told Horton that he

could not be removed from the tank unless the officer witnessed a

fight. As the officer began to walk away, Horton pushed the

inmate, who he alleged was about to assault him, and the officer

removed Horton from the tank. 

After the officer advised his superior of the incident, the

lieutenant advised Horton that he would be moved. The officer did
3

not adopt Horton's suggestion that the assaultive inmate be

separated from the other inmates. 

Tank 12-S-14

Horton was transferred to Tank 12-S-14 and began having problems

with inmate Brown. Another inmate had advised security that Brown

was "assaultive" and a troublemaker. Brown was questioned by

security and returned to the same tank, where he continued to

threaten several persons. Horton alleged that Brown told inmate

Gee to assault Horton, and Gee punched Horton several times in the

mouth, requiring Horton to obtain five stitches in his lip. Horton

was moved from the tank after he reported the assault. Horton

admitted that he refused to identify Brown or Gee because he was

afraid that he would be known as a "snitch," which would lead to

further assaults. He later filed a grievance naming these inmates

and requested disciplinary action against them, but no action was

taken. 

Tank 5-P-7

Horton learned that inmate Bell, who was also housed on 5-P-7,

had been previously placed in solitary confinement because of being

involved in a fight. Bell had previously threatened Horton when he

first arrived at the Dallas County jail, and Horton had reported

the problem to security. Bell was questioned by security and then

sent back to the same area. Horton alleged that Bell subsequently

learned that it was Horton who reported him and Bell began to

threaten Horton. However, both men were transferred from the tank

and Bell did not have the opportunity to assault Horton. 
4

Tank 7-W-10

Prior to his transfer to Tank 7-W-10, one of the officers called

Horton a coward because he requested to be placed in protective

custody. Horton was told by a supervisor that protective custody

was no longer available. 

While Horton was housed on Tank 7-W-10, an inmate stole Horton's

coffee while he was sleeping. The inmate bragged that he would

continue to steal from Horton, and Horton reported the inmate to

security. After an investigation was conducted, Horton was

surprised to learn that he was being transferred rather than the

other inmate. 

Horton made a knife-like instrument out of plastic and put a

razor blade on the end of it in order to protect himself from other

inmates. Prior to his transfer, the knife was discovered and a

disciplinary charge was filed against Horton. 

Tank 5-P-14

A few weeks after Horton was transferred to Tank 5-P-14, some

inmates began threatening Horton and another inmate. After the

other inmate was assaulted, Horton reported his fear that he would

be assaulted to his supervisor. Horton was told that he was being

transferred and he objected unless he could be placed in protective

custody. He was again told that protective custody was no longer

available. 

Tank 8-N-5
5

Horton alleged that, on the first day that he was housed on Tank

8-N-5, another inmate was threatened and robbed by five inmates.

On the next day, Horton was robbed of $5, punched, and told that he

would be robbed of any further money that he received. Horton

alleged that he wrote security about the threats and was not moved

for "several" days. Horton's sister also called the jail about the

threats without any results. Horton further alleged that the same

inmates steal other inmates' food trays and that he sometimes

receives only one meal a day. 

Horton was allowed to proceed in forma pauperis (IFP). The

magistrate judge recommended that Horton's complaint be dismissed

as frivolous because his complaint did not support an arguable

finding of deliberate indifference on the part of the defendants.

Horton filed objections to the magistrate judge's recommendation

and also filed a motion to file an amended complaint. The district

court referred the objections and the motion to amend to the

magistrate judge for disposition and on that same date, an order

and judgment were entered, dismissing the complaint as frivolous.

Horton filed notice of appeal on October 17, 1994. Horton's appeal

was subsequently dismissed on January 23, 1995, for failure to file

a brief. 

On October 20, 1994, the magistrate judge granted Horton's motion

for leave to file an amended complaint. In his amended complaint,

Horton re-urged the allegations made in the first 34 paragraphs of

his original complaint. He further amended his allegations

concerning the incidents that occurred while he was housed in Tank
6

8-N-5. He added an additional allegation that "AS STATED ABOVE,

PLAINTIFF ENDED UP BEING ASSAULTED AGAIN AFTER WARNING SECURITY OF

THIS THREAT WHERE THEY REFUSED TO TAKE ACTION".

Horton also alleged in his amended complaint that Sheriff Bowles

has a policy of being deliberately indifferent to the safety of the

inmates housed in the county jail although he is aware of several

deficiencies in the safety policy. Horton alleged that the policy

is inadequate because it (1) did not provide for the segregation of

assaultive inmates or the protection of non-violent inmates; (2)

failed to require proper investigation of assaults or that

disciplinary action be taken against violent inmates; and (3) did

not provide for preventive action in response to reported threats.

The magistrate judge sent a questionnaire to Horton. In his

responses to the questionnaire, Horton alleged that Sheriff Bowles

was liable because of his failure to supervise his subordinates

sufficiently, his refusal to talk to inmates or their relatives

about problems, and his failure to perform his affirmative duty of

running the jail safely. Horton alleged that Bowles acted with

deliberate indifference because he refused to take any action

despite being placed on notice of the violent conditions. 

The magistrate judge filed a supplemental report, recommending

dismissal of the complaint as frivolous. The district court

adopted the magistrate judge's recommendation and dismissed the

complaint. 

Horton filed a motion for reconsideration of the order of

dismissal within ten days. Horton also had submitted objections to
7

the magistrate judge's recommendation, which were not filed in the

record until after the judgment of dismissal was entered. The

district court denied the motion for reconsideration and Horton's

objections to the magistrate judge's recommendation. Horton filed

another notice of appeal. 

OPINION

"This Court must examine the basis of its jurisdiction, on its

own motion, if necessary." Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987). A question arises as to the effect, if any, of

Horton's October 17 notice of appeal on the district court's

jurisdiction over the remaining proceedings in the case. A

district court is divested of jurisdiction over all matters which

are validly on appeal. See Dayton Ind. School Dist. v. U.S.

Mineral Products Co., 906 F.2d 1059, 1064 (5th Cir. 1990). 

Courts of appeal have jurisdiction from all final decisions of

the district courts of the United States. 28 U.S.C. § 1291. A

final decision, for the purposes of section 1291, "generally is one

which ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment. This court has held that the

appealability of an order normally depends on its effect, not

merely its language as such." Frizzell v. Sullivan, 937 F.2d 254,

255 (5th Cir. 1991) (internal citations and quotations omitted).

Finality is viewed under a "practical rather than technical

construction, with the aim being to avoid piecemeal trial and

appellate litigation". Id. (internal citations and quotations

omitted). 
8

Although the district court's order and judgment dismissing

Horton's complaint appeared to be a "final, appealable, order," the

district court's referral of Horton's motion to amend his complaint

to the magistrate judge had the effect of re-opening the case.

Horton's subsequent notice of appeal did not confer jurisdiction on

the appellate court because there was no longer a final appealable

order in the case. Therefore, the district court was not divested

of jurisdiction and the case validly proceeded to judgment.

Horton argues that the magistrate judge's determination that the

prison officials acted reasonably under the circumstances is

erroneous based on the incidents that occurred in the first unit in

which he was housed.

A district court may dismiss an in forma pauperis proceeding if

the claim has no arguable basis in law and fact. Denton v.

Hernandez, 504 U.S. 25, 31-32 (1992). A dismissal under 28 U.S.C.

§ 1915(d) is reviewed for an abuse of discretion. Id. at 33.

Prison officials have a duty under the Eighth Amendment to protect

inmates from violence at the hands of other prisoners. Farmer v.

Brennan, 114 S. Ct. 1970, 1976 (1994). However, not every injury

"by one prisoner at the hands of another . . . translates into

constitutional liability for prison officials responsible for the

victim's safety". Id. at 1977. To prove an Eighth Amendment

violation, "the inmate must show that he is incarcerated under

conditions posing a substantial risk of serious harm" and the

prison official's state of mind must be one of "deliberate

indifference" to the inmate's health or safety. Id. A prison
9

official is deliberately indifferent if the official is both "aware

of facts from which the inference could be drawn that a substantial

risk of harm exists" and he draws that inference. Id. at 1979.

"Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration in

the usual ways, including an inference from circumstantial

evidence. . . . [A] factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was

obvious." Id. at 1981 (citation omitted).

Although Horton alleged that the officer on Tank 2-P-7 walked

away after his initial complaint of an assault by another inmate,

Horton further alleged that he then immediately instigated a fight

with the other inmate and the officer removed Horton from the area.

Further, he alleged that after the officer reported the incident to

his supervisor, Horton was transferred to another section.

Horton's allegations reflect that the jail personnel took action

upon becoming aware of facts indicating that Horton might he

subjected to a substantial risk of harm, even if it was Horton who

created the problem. The allegations do not arguably reflect

deliberate indifference on the part of jail personnel.

Horton next argues that the magistrate judge failed to consider

properly the incident that occurred on Tank 12-S-14. Horton argues

that the limited investigation made by officials following

complaints made by other inmates about a particular inmate was the

result of deliberate indifference and that he was injured as a

result of the indifference. 
10

As stated above, Horton alleged that he was punched by inmate Gee

at the direction of inmate Brown, after complaints had been made to

security by other inmates against Brown. Horton admits that he was

transferred after he reported the incident and that he refused to

identify Brown or Gee as his assailants at that time. Horton's

allegations do not reflect that prison officials were or should

have been aware that Brown or Gee posed a substantial risk of harm

to Horton prior to the occurrence of the assault. The officials

acted reasonably in removing Horton from the area after the

incident. 

Horton further contends that the incidents that occurred while

he was housed in Tank 8-N-5 reflect deliberate indifference on the

part of the defendants. Horton argues that the magistrate judge

failed to consider that he was assaulted twice while in that tank.

The magistrate judge determined that Horton's complaint alleged

that Horton's assault was preceded by an assault on another inmate

and not by a prior assault on Horton. The magistrate judge

determined that Horton had affirmatively alleged that he was

removed from the tank after he was assaulted. 

Horton's original complaint did not allege that he was assaulted

a second time prior to being transferred to another tank. In his

amended complaint, Horton made the confusing allegation that "AS

STATED ABOVE, PLAINTIFF ENDED UP BEING ASSAULTED AGAIN AFTER

WARNING SECURITY OF THIS THREAT WHERE THEY REFUSED TO TAKE ACTION".

There were no previous references to two assaults against Horton

while he was housed on 8-N-5 in the amended complaint. However,
11

even assuming that Horton was assaulted twice, Horton's allegations

that he was moved to another area within "several days" shows that

the defendants were not acting with deliberate indifference to his

safety. 

Horton argues that the magistrate judge construed all of the

facts in favor of the defendant, and, in particular, the fact that

Horton had made a razor-knife instrument. Horton argues that he

required the knife for protection because of the defendants'

failure to make reasonable investigations of threats. The

magistrate judge noted that, despite Horton's complaints of threats

and assaults by other inmates, he admitted to initiating a fight

with another inmate and to possession of a razor-knife. These

allegations certainly give rise to an inference that Horton was not

the passive non-violent inmate that he claims to be. The

magistrate judge did not give an improper construction to these

facts. 

Considering all of the allegations in Horton's complaint and

amended complaint, as well as his responses to the magistrate

judge's questionnaire, it appears that Horton disagrees with the

manner in which the defendants respond to complaints made about

other inmates. However, his allegations do not reflect that the

defendants acted with deliberate indifference to Horton's specific

complaints or failed to take action to protect him from a

substantial risk of harm. Horton's complaint does not support an

arguable § 1983 claim based on an Eighth Amendment violation

against any of the defendants in their individual capacities. 
12

Horton argues that the policy implemented by Sheriff Bowles

reflects his deliberate indifference to the inmates' safety.

Horton argues that it was the sheriff's duty to insure that his

subordinates run the jail correctly. Horton argues that the

sheriff should have been placed on notice of the problems as a

result of the large number of lawsuits and grievances filed

alleging denial of medical care, safety, and the maladministration

of the jail. 

As a supervisory official, Sheriff Bowles may not be liable for

the unconstitutional acts of his guards on a theory of vicarious

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

"Supervisory liability exists even without overt personal

participation in the offensive act if supervisory officials

implement a policy so deficient that the policy itself is a

repudiation of constitutional rights and is the moving force of the

constitutional violation." Id. at 304 (internal quotations not

indicated). 

In order to prove his claim of inadequate policy based on the

sheriff's failure to properly supervise his subordinates, Horton

would be required to show that the supervisory procedures employed

are inadequate, that the sheriff was deliberately indifferent in

adopting the procedures, and that the inadequate policy directly

caused his injury. See City of Canton v. Harris, 489 U.S. 378, 388

(1989). Generally, the "failure to supervise gives rise to section

1983 liability only in those situations in which there is a history

of widespread abuse. Then knowledge may be imputed to the
opin\95-10133.opn

HRD 13

supervisory official, and he can be found to have caused the later

violation by his failure to prevent it." Hinshaw v. Doffer, 785

F.2d 1260, 1263 (5th Cir. 1986). 

Horton's complaint reflects that the sheriff's subordinates

responded to Horton's reports of threats or assaults against him by

other inmates in a reasonable manner by transferring him away from

the dangerous inmates. Horton's allegations do not support an

arguable claim that the sheriff implemented or condoned a policy of

deliberate indifference that posed a substantial risk of harm to

Horton.

Horton argues that his case should have been consolidated with

the other cases pending against the Dallas County jail. Horton

sought in his motions for reconsideration to have his case

consolidated with several consolidated suits by inmates against

Sheriff Bowles alleging the denial of medical care, unsafe working

conditions and denial of safety. The district court implicitly

denied the motions to consolidate by denying the motions for

reconsideration. Because Horton's complaint does not support an

arguable § 1983 claim, his motions to consolidate were validly

denied as moot. 

AFFIRMED.