* 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determined that this opinion should not be published.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. 95-10536

Summary Calendar

RAYFIELD J. THIBEAUX

Plaintiff-Appellant,

VERSUS

T.J. MEDART AND MAJOR PRASIFKA

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

(2:94-CV-72)

December 4, 1995

Before REYNALDO G. GARZA, JONES, BARKSDALE, Circuit Judges.

PER CURIAM: *

Background

Appellant Thibeaux, an inmate in the Texas Department of

Criminal Justice

- Institutional Division (TDCJ-ID), filed a pro se

complaint in forma pauperis pursuant to 42 U.S.C. § 1983 while he

was incarcerated at the Swisher County Detention Center, a unit of1 Appellant is currently incarcerated at the Stiles Unit of TDCJ-ID, a prison facility located

in Beaumont, Texas.

2 TDCJ-ID. 1 Appellant alleged that he was being retaliated against

by other inmates who had discovered that he was an informant.

Appellant claims that in June of 1992 he informed appellees (Warden

Medart and Major Prasifka, employees of TDCJ-ID) that he was a

narcotics informant from the Harris County, Texas area and that he

felt his life was in danger. He requested transfer to another

unit.

Following his complaint to appellee s, appellant claims that

someone started to smear urine and sewage on his bed in retaliation

for his status as a drug informant. Appellant also claims that he

was involved in two altercations with other inmates because of his

narcotics status. According to appellant, appellees did nothing to

move him to a new area of the prison unit or to a new unit even

after learning of the specific acts of retaliation.

Appellees were ordered to answer. The defendants answered and

moved for summary judgment. Thibeaux responded and filed a motion

for an immediate injunction. The magistrate judge scheduled a

hearing pursuant to Spears v. McCotter

, 766 F.2d 179 (5th Cir.

1985), and to evaluate the defendants' motion for summary judgment

and Thibeaux's motion for injunctive relief. The parties consented

to proceed before the magistrate.

At the hearing, Thibeaux testified that he met with Warden

Medart shortly after his transfer to Swisher County and told Medart

that he had been an informant and that he was "having problems here2 T hibeaux also testified that he told Major Prasifka that he had been an informant and

Prasifka replied that "we don't transfer for that[.]"

3 on the unit[. ]" According to Thibeaux, Medart told him that a

single man cell was not a n option. 2 Thibeaux acknowledged,

h owever, that, in a response to a grievance he filed relating to

his problems, he was informed by Medart that "you failed to present

any evidence to corroborate your allegations. There was no

evidence of harassment o[r] retaliation. There were no signs of

urine found on your sheets or clothing." In response to a second

similar grievance, Medart informed Thibeaux that "you have never

once been able to provide evid ence that your allegations have

m erit[.]" Thibeaux acknowledged that "nobody can see" the urine

smeared on his bunk.

Thibeaux also testified that he had been in several fights at

the unit. He related that his most recent fight was over money.

He also relat ed that a fight prior to that had occurred after he

turned on the television early one morning. He admitted that he

had been charged with assault with regard to that fight. The

magistrate judge asked Thibeaux for proof that he was being

assaulted because of his alleged status as an informant and

Thibeaux replied that "I have no proof. Well, I, all I can go by

is what's happening to me."

The magistrate judge determined that, assuming that Thibeaux

had stated an Eighth Amendment cl aim, the defendants did not

display deliberate indifference to Thibeaux's plight. The

magistrate judge fu rther concluded that Thibeaux had failed to4

present any evidence to show that the defendants' actions were not

o b jectively reasonable; thus, the defendants were entitled to

qualified immunity. The magistrate judge granted the defendants'

motion for summary judgment and denie d as moot Thibeaux's motion

for an immediate injunction. This appeal followed. For the

reasons stated below, we affirm.

Discussion

A. Standard of Review

Under Federal Rule of Civil Procedure 56(c), summary judgment

is appropriat e where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law." Fed.R.Civ.P. 56(c); Duhon v. Mobil Oil Corp.

, 12

F.3d 55, 57 (5th Cir. 1994). This Court reviews grants of summary

judgment de novo , applying the same standards as those applied by

the district courts. D uhon

, 12 F.3d at 57. If this Court

determines that the district court erred in its stated reason for

granting summary judgment, the judgment of the district court can

nonetheless be affirmed provided othe r adequate grounds for

granting summary judgment appear. Thompson v. Geo r gia Pacific

Corp. , 993 F.2d 1166, 1167-68 (5th Cir. 1993).3 Thibeaux also avers that he is now housed at TDCJ Stiles Unit and is being denied medical

care. This issue was not before the court below. Since this claim is not purely legal, it is not

reviewable for the first time on appeal. Varnado v. Lynaugh

, 920 F.2d 320, 321 (5th Cir. 1991).

5 B. Propriety of Summary Judgment

Thibeaux argues that the magistrate judge erred by denying his

motion for injunctive relief and by granting the defendants' motion

for summary judgment. 3 Although the defendants moved for summary

judgment, they did not submit any summary judgment evidence other

than their testimony at the evidentiary hearing. This court has

affirmed judgment s resting on evidence adduced at a hearing when

the testimony is uncontradicted and the factual basi s for the

judgment admits no genuine controversy about material matters. U.S.

v. State of Louisiana

, 9 F.3d 1159, 1168 (1993). However, because

the defendants did not produce any evidence in support of their

motion until the day of the hearing, Thibeaux did not have notice

of the factual basis of the defendants' motion. Arguably, the

magistrate court's dismissal under Rule 56(c) was in error.

Nev ertheless, while the magistrate judge could not rely on

testimony or prison r ecords to make credibility decisions beyond

the scope of the Spears hearing, Thibeaux did not challenge the

essential facts which rendered his claim without merit. We may

thus affirm the judgment for defendants under 28 U.S.C. § 1915(d).

C. Dismissal of Thibeaux's Claims under 28 U.S.C. § 1915(d).

An in forma pauperis claim that has no arguable basis in law

or fact may be di smissed as frivolous under § 1915(d). B ooker v.

Koonce

, 2 F.3d 114, 115 (5th Cir. 1993). At the S pea rs hearing,6

Thibeaux himself acknowledged facts rendering his claim baseless in

law. Therefore, this case can properly be dismissed as frivolous

as shown infra

.

Priso n 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). To constitute an

Eighth Amendmen t violation, Thibeaux must show that he was

"incarcerated under conditions posing a substantial risk of serious

harm" and that the defendants' state of mind was one of "deliberate

indifference" to his health or safety. Id. The defendants were

deliberately indifferent if they were both "aware of the facts from

which the inference could be drawn that a substantial risk of harm

exists" and they drew the inference. Id. at 1979. If Thibeaux's

allegations d o not establish a failure-to-protect claim, his

complaint may be dismissed under § 1915(d). See Neals v. Norwood

,

59 F.3d 530, 533 (5th Cir. 1995).

Thibeaux acknowledged that Medart answered his grievances

regarding the urine and harassment. In doing so, he acknowledged

that his claims were being investigated. Further, Thibeaux's own

recount of the fighting incidents establishes that the defendants

c ould not have reasonably inferred that Thibeaux faced a

substantial risk of harmfrom other inmates. Thibeaux admitted

that he was charged as the aggressor in one of the fights and

admitted that he was twice disciplined for fighting. On appeal, he

explains that one of the fights occurred after the inmate placed

his back-side on Thibeaux's shoulder. None of these facts suggest4 Thibeaux also suggests that the defendants lied at the evidentiary hearing. However,

because the dismissal of the complaint may be upheld under § 1915(d), the defendants'

testimony is not considered.

7 that Thibeaux was the target of inmate assaults.

In Ne als , the plaintiff asserted that the defendants

jeopardized his safety by not moving him to protective custody

after determining that there was insufficient evidence to support

his claim that he needed protection. Id. at 531-32. The magistrate

judge dismissed the complaint as frivolous, noting Ne als had

alleged, at most, negligence. Id. at 533. This Court affirmed,

concluding that the magistrate judge had not abused his discretion

by determining that the plaintiff had failed to raise a

constitutional claim. Id. Similarly, the essence of Thibeaux's

complaint is that the defendants erroneously determined that there

was insufficient evidence to support his claims of harassment.

Thibeaux argues that he proved, through a grievance he

submitted to the magistrate judge, that he discussed with Warden

Medart the fact that the inmates had discovered he allegedly was an

informant. He also argues that Medart admitted such on crossexamination. Thibeaux apparently misunderstands the nature of an

Eighth Amendment violation in this context. Although Medart was

aware of Thibeaux's allegations, his failure to act on them was

based on his reasoning that Thibeaux had failed to substantiate the

allegations. Failure to act under these circumstances does not

amount to deliberat e indifference and establishes, at most,

negligence. S ee id. at 532-33. Negligence will not support a §

1983 claim. Id. at 532. 48

Because we hold that appellant's claim was frivolous under

§ 1915 (d) and that judgment in favor of the appellees was

appropriate, we do not reach the issue of appellees' qualified

immunity. Similarly, we do not reach the merits of Thibeaux's

request for equitable relief. His arguments regarding the

magistrate judge's denial of equitable relief were mooted by his

transfer from the Swisher County Jail. Cooper v. Sheriff, Lubbock

County, Tex. , 929 F.2d 1078, 1084 (5th Cir. 1991).

We AFFIRM the decision of the court below.