*Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 96-40020 

Summary Calendar

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KURT WAYNE LOPER,

Plaintiff-Appellant,

VERSUS

JOHN UNIDENTIFIED, Et Al.

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

For the Eastern District of Texas

(6:95-CV-440)

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August 6, 1996

Before DAVIS, BARKSDALE, and JONES, Circuit Judges.

PER CURIAM:*

Kurt Wayne Loper, a prisoner of the State of Texas who is

proceeding pro se and in forma pauperis, appeals the magistrate

judge’s dismissal of his complaint as frivolous. See 28 U.S.C.

§ 1915(d). Loper alleges that Texas prison officials violated his

Eighth Amendment rights by forcing him to clean prison cells under

conditions which may have risked his exposure to the AIDS virus.

He also contends that officials retaliated against him for filing

grievances related to these clean-up duties and that he did not
2

consent to proceed before the magistrate. We affirm. 

This Court reviews § 1915(d) dismissals for abuse of

discretion. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A

complaint is factually frivolous if its allegations are “clearly

baseless . . . fanciful, fantastic, and delusional.” Moore v.

Mabus, 976 F.2d 268, 270 (5th Cir. 1992). A legally frivolous

suit, on the other hand, lacks an arguable basis in the law. E.g.,

Parker v. Fort Worth Police Dept., 980 F.2d 1023, 1024 (5th Cir.

1993). Loper’s claim suffers from the latter malady.

Prison officials violate the Eighth Amendment when they show

deliberate indifference to conditions that may cause inmates

serious health problems in the future. See Helling v. McKinney,

509 U.S. 25 (1993) (environmental tobacco smoke); Gomez v. Warner,

No. 94-60530, slip op. at 6 (5th Cir. October 20, 1994)(HIV

infection). A prison official is not deliberately indifferent

unless he has subjective knowledge of a substantial risk to inmate

health or safety and chooses to disregard that risk. Farmer v.

Brennan, ___ U.S. ___, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811,

825 (1994). Officials who take significant steps to protect

prisoners from such risks are not liable, even when they do not

succeed in preventing the harm. Id. at 1982-83.

Loper complains that prison officials forced him to clean

massive amounts of blood from two cells in which prisoners had

attempted or committed suicide. The appellant’s testimony at the
 

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

3

Spears1 hearing, however, demonstrates that officials were not

deliberately indifferent to the possibility that he might contract

HIV. The first time officials assigned Loper this task a prison

nurse supervised him. She provided him with latex gloves and a

medical apron and advised him to treat all blood as contaminated.

The nurse also instructed Loper to change his gloves immediately if

they broke and to avoid getting blood in his eyes and mouth. On

the second occasion, officials gave Loper two kits which included

spill clean-up instructions, latex gloves, goggles, and a face

mask. Prison officials, therefore, recognized that the blood might

pose a danger and took significant steps to avoid any risk of

infection. The magistrate judge did not abuse her discretion in

dismissing Loper’s claim. Under Farmer v. Brennan, it lacks an

arguable basis in the law.

Loper’s remaining claims are equally meritless. The

transcript of the Spears hearing belies Loper’s assertion that he

never consented to proceed before the magistrate. And his

allegations of retaliation are conclusory. The magistrate properly

dismissed this claim as frivolous. 

We therefore affirm the dismissal of the appellant’s claims.

AFFIRMED.