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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40597

Summary Calendar

LYLE KEVIN BRIDGEWATER

Plaintiff-Appellant

v.

TIMOTHY SIMMONS, Senior Warden; MARK W DUFF, Chief of

Classifications; XEAVER KING, Disciplinary Captain; A C WORTHAM,

Sergeant; KAREN KERSTENS, Sergeant

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:07-CV-218

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Lyle Kevin Bridgewater, Texas prisoner # 1398768, appeals from the

dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C.

§ 1915A(b)(1). He moves this court for the appointment of counsel and to have

his case remanded for a jury trial before a different judge in the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

May 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-40597

2

The district court is directed to dismiss a complaint filed by a prisoner if

the complaint is frivolous or fails to state a claim upon which relief may be

granted. See id. § 1915A(b)(1). Because Bridgewater’s claims were dismissed

pursuant to Section 1915A, this court’s review is de novo. Geiger v. Jowers, 404

F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous “if it lacks an arguable

basis in fact or law.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal

quotation marks omitted).

This appeal involves Bridgewater’s claims that prison officials were

deliberately indifferent to his claims that his life was endangered following a

fight with a gang-affiliated fellow inmate, and that this deliberate indifference

resulted in physical harm to him. Contrary to Bridgewater’s assertions that

prison officials totally ignored the danger to his life, prison officials moved

Bridgewater to a new housing pod where the inmate with whom Bridgewater

fought was not housed. There is no evidence in the record that the prison

officials who changed Bridgewater’s housing assignment actually inferred from

the facts stated by Bridgewater that Bridgewater faced a substantial risk of

harm from other gang members as a result of the fight. Absent evidence of such

an inference and in light of prison officials’ attempt to protect Bridgewater by

changing his housing assignment, Bridgewater’s deliberate indifference claims

were correctly dismissed as frivolous. See Farmer v. Brennan, 511 U.S. 825, 832-

34, 837, 844 (1994); Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996) (en

banc); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).

The dismissal of Bridgewater’s complaint is affirmed, and his outstanding

motions are denied. For purposes of the three-strikes provision of

Section 1915(g), the district court’s dismissal under Section 1915A counts as a

strike. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Accordingly, Bridgewater is warned that if he accumulates three strikes he may

not thereafter proceed in forma pauperis in any civil action or appeal filed while
No. 08-40597

3

he is incarcerated or detained in any facility unless he is under imminent danger

of serious physical injury. See 28 U.S.C. § 1915(g).

AFFIRMED; ALL OUTSTANDING MOTIONS DENIED; SANCTION

WARNING ISSUED.