* Pursuant to Local Rule 47.5, the Court has determined that this

opinion sh o uld not be published and is not precedent except under the limited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

FIFTH CIRCUIT

_______________

No. 95-30955

(Summary Calendar)

_______________

WAYMAN GOODLEY,

Plaintiff-Appellant,

versus

JANET RENO, K HAWKS; KEITH HALL,

Warden; CHIEF TYLER; OFFICER

BORDELON,

Defendants-Appellees.

_______________________________________________

Appeal from the United States District Court

For the Western District of Louisiana

(94-CV-1763)

_______________________________________________

March 1, 1996 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Plaintiff Wayman Goodley appeals the district court's judgment

dismissing his civil rights action with prejudice. We affirm.

I

Goodley, an inmate at the Federal Correctional Institution in

Oakdale, Louisiana, sustained serious injuries when a fellow inmate

allegedly threw scalding water on him and stabbed him with a handmade knife. The assigned prison guard was not present during the1 Although Goodley filed his complaint under 42 U.S.C. § 1983, he

alleges civil rights violations by federal defendants. We construe such an

action as one brought pursuant to Bivens v. Six Unknown Named Agents , 403 U.S.

388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971). S tephenson v. Reno

, 28 F.3d 26, 26

n.1 (5th Cir. 1994).

-2- assault. Proceeding p ro se and in forma pauperis

, Goodley filed

suit, alleging that prison officials violated his Eighth Amendment

r ights by failing to protect him. 1 Defendants filed a motion to

dismiss for failur e to state a claim upon which relief can be

granted, pursuant to F ED

. R. C IV

. P. 12(b)(6). The magistrate judge

recommended that Defendants' motion be granted. In accordance with

the magistrate's recommendation, the district court granted

Defendants' motion to dismiss and entered judgment d i smissing

Goodley's action with prejudice. Goodley filed a timely notice of

appeal.

II

Goodley argues that the district court erred in granting

Defendants' motion to dismiss. We review a district court's Rule

12(b)(6) dismissal de novo

. Robertson v. Plano City of Texas , 70

F.3d 21, 23 (5th Cir. 1995). Dismissal under Rule 12(b)(6) is

appropriate if the plaintiff fails to state a claim upon which

relief can be granted. F E D

. R. C IV

. P. 12(b)(6). Dismissal w ith

pr ejudice under Rule 12(b)(6) is appropriate only if it appears

beyond doubt that the plaintiff c an prove no set of facts in

support of his claim that would entitle him to relief. G uerrero v.

Hauck

, 502 F.2d 579, 580 (5th Cir. 1974). Further, dismissal under

Rule 12(b)(6) of the complaint of a pro se prisoner is appropriate

only when the pri soner has been afforded adequate opportunity to-3-

develop his case to the point whe re any merit it may contain

becomes apparent. Jackson v. Cain , 864 F.2d 1235, 1241 (5th Cir.

1989).

Prison official s have a duty to protect prisoners from

violence at the hands of other prisoners. Farmer v. Brennan

, ___

U.S. ___, ___, 114 S. Ct. 1970, 1976, 128 L. Ed. 2d 811 (1994).

However, a prisoner's Eighth Amendment rights are violated only if

(1) an inmate is incarcerated under conditions posing a substantial

risk of serious harm, and (2) prison officials have a sufficiently

culpable state of mind to constitute deliberate indifference to the

inmate's health or safety. I d

. at

___, 114 S. Ct. at 1977 . In

accordance with this standard, allegations of mere negligence are

insufficient to state a claim for violation of a prisoner's Eighth

Amendment rights. W hitley v. Albers

, 475 U.S. 312, 319, 106 S. Ct.

1078, 1084, 89 L. Ed. 2d 251 (1986).

Goodley alleges that prison officials breached their duty to

protect him from his attacker. To substantiate his claim, Goodley

argues that prison officials should have known of his attacker's

alleged mental instability, and that pr ison officials failed to

exercise due care in conducting regul ar and thorough inmate cell

searches. Goodley's allegations sound only in negligence, and thus

fail to allege that prison officials w ere acting with a

sufficiently culpable state of mind to constitute deliberate

indifference to his health or safety. Because Goodley fails to

state a claim for violation of his Eighth Amendment rights, we hold

that the district court did not err in granting Defendants' Rule2 Although Goodle y has not sought leave to amend his complaint, he

supplemented his allegations in his response to Defendants' motion to dismiss.

3 Goodley also moves for appointed counsel on appeal. We are not

required to appoint counsel for an indigent plaintiff presenting a civil rights

complaint unless the case presents exceptional circumstances. Branch v. Cole

, 686 F.2d 264, 266 (5th Cir. 1982). We find that Goodley's case does not possess

the requisite exceptional circumstan ces to warrant appointment of counsel.

Therefore, Goodley's motion for appointed counsel is DENIED.

-4- 12(b)(6) motion to dismiss.

We hold further that the district court did not err in

dismissing Goodley's complaint with prejudice. We find that

Goodley has been afforded adequate opportunity to develop his case

to the point where any merit it contains would have become

apparent. 2 We also find that even if Goodley were given further

opportunity to amend his complaint, he could prove no set of facts

in support of his claim which would entitle him to relief. 3

III

For the foregoing rea sons, we AFFIRM the judgment of the

district court granting Defendants' m otion to dismiss and

dismissing Goodley's complaint with prejudice.