IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40047

Summary Calendar

DONALD L. BURLING,

Plaintiff-Appellant

v.

PORSCHE SIMON, Sergeant; UNIDENTIFIED PARTIES, Two Unknown Black

Female Correctional Officers, Stiles Unit; DAVID DOUGHTY; HARLEAN

HOWARD; L. MITCHELL, Officer; LATICIA JONES,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:05-CV-597

Before JONES, Chief Judge and JOLLY and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Donald L. Burling, Texas prisoner # 1026184, appeals the district court’s

summary judgment dismissal of his 42 U.S.C. § 1983 complaint against three

correctional officers and the warden for failure protect him from an assault by

another inmate. The district court dismissed the claims against Defendants

Harlean Howard, Laticia Jones, and David Doughty for failure to exhaust

United States Court of Appeals

Fifth Circuit

F I L E D

December 29, 2010

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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administrative remedies and dismissed the claim against Defendant Porsche

Simon based on qualified immunity.

Burling contends that the district court erred by dismissing his claims for

failure to exhaust administrative remedies because the district court applied the

wrong legal standard and his grievances were sufficient to alert prison officials

to his claims. Contrary to Burling’s contention, the standard set forth in

Johnson v. Johnson, 385 F.3d 503, 517 (5th Cir. 2004), for assessing the

sufficiency of a grievance continues to be applicable following the Supreme

Court’s decision in Jones v. Bock, 549 U.S. 199, 218 (2007). The district court

correctly applied this standard when it determined that Burling’s grievances

were sufficient to alert prison officials that he contended Simon failed to properly

conduct the life endangerment investigation but insufficient to alert prison

officials that he contended Howard and Jones failed to intervene during the

assault and Doughty failed to properly supervise and train his employees.

Therefore, the district court’s judgment as to these defendants is AFFIRMED.

For the first time on appeal, Burling contends that Simon was not entitled

to qualified immunity because she falsely stated that he did not request a

housing reassignment and did not actually submit the life endangerment report

to the supervising officer until after he was assaulted. This argument is waived,

and we decline to consider it. See Jennings v. Owens, 602 F.3d 652, 657 n.7 (5th

Cir. 2010).

Burling contends alternatively that Simon was not entitled to qualified

immunity because she did not order or recommend that he be transferred to a

different housing unit. Simon was not authorized to change Burling’s housing

assignment. However, Burling has raised a genuine issue of material fact

regarding whether Simon was deliberately indifferent for failing to recommend

that he be transferred.

Simon moved for summary judgment on the basis of her reliance on

Burling’s statement that he was not in fear for his safety and the assurance of

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the inmate who threatened him that he did not intend to harm Burling. In his

affidavit, Burling averred that he asked to be transferred and communicated his

fear of serious, imminent injury to Simon when she informed him that he was

not going to be transferred. For summary judgment purposes, we must accept

his version of events as true. See Celestine v. Petroleos de Venezuella SA,

266 F.3d 343, 349 (5th Cir. 2001). In addition, the inmate who threatened

Burling made conflicting statements about his intent to harm him. A reasonable

jury could thus conclude that Simon’s reliance on the inmate’s conflicting

statements as a basis for not recommending a transfer was unreasonable in light

of the threats made against Burling, which were substantiated by a fellow

officer; Burling’s request to be transferred; and Burling’s stated fear of serious,

imminent injury. Therefore, there was a genuine issue of material fact whether

Simon was on notice of a serious threat of harm to Burling.

However, Simon was “entitled to qualified immunity unless clearly

established law showed that . . . [her] response was insufficient.” Johnson,

385 F.3d at 526. Burling’s version of events, which we must accept as true,

demonstrates that Simon’s failure to take further action in light of the

substantial risk of harm to Burling might be viewed as objectively unreasonable

under the parameters set forth in Johnson. See id. at 526-27. Therefore, the

district court erroneously granted Simon summary judgment on the basis of

qualified immunity, and the judgment is VACATED as to Burling’s claim against

Simon.

Burling also contends that the district court abused its discretion by

denying his requests for discovery prior to ruling on the defendants’ motion for

summary judgment. Burling’s reliance on Hinojosa v. Johnson, 277 F. App’x

370, 374-78 (5th Cir. 2008), is misplaced. Burling’s speculation that Simon’s

relationship with the inmate who assaulted him tainted her investigation is

raised for the first time on appeal. Even if we considered this argument and its

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relevance to the qualified immunity issue, the discovery request Burling made

in the district court was not narrowly tailored to this issue. Cf. id. at 378.

Finally, Burling contends that appointed counsel was ineffective and

requests that we order the district court to appoint different counsel. Assuming

that counsel rendered ineffective assistance in connection with the instant

proceedings, counsel’s deficient performance does not constitute a basis upon

which to invalidate the district court’s judgment. The constitutional right to

effective assistance of counsel does not apply in a civil case. See Sanchez v. U.S.

Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986). Accordingly, Burling’s

argument is without merit.

The judgment of the district court is AFFIRMED IN PART and VACATED

IN PART, and the case is REMANDED for further proceedings.

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