* 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that this opinion should not be published and is not precedent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. 00-40449

Summary Calendar

 

LORENZO THOMAS,

Plaintiff-Appellant,

versus

JACKSON COMSTOCK, Individually & in his official capacity as

Lieutenant; BOBBY PURVIS, Individually & in his official capacity

as Sergeant; JERRY COWEN, Individually & in his official capacity

as Correctional Officer III; SAMMY BROWN, Individually & in his

official capacity as Correctional Officer III; TERRY VALENTINE,

Individually & in his official capacity as Correctional Officer

III; GARY HERRING, Sergeant; MICHAEL ROESLER, Captain; KATHRYN

BELL, Captain; DENICIA JEFFERSON, Administrative Technician III;

SYLVIA PIASTA, Chief of Classification; EUGENE HARBIN, Major;

ROBERT TREON, Warden; CEDERIC MCKNIGHT, Warden,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:96-CV-378

--------------------

March 6, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Lorenzo Thomas, Texas prisoner # 739840, appeals the

district court’s dismissal as frivolous and for failure to state

a claim upon which relief may be granted of his claim that the

defendants failed to protect him from sexual assault. Thomas

told the defendants that he was receiving threats from members of
No. 00-40449 

-2-

** Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

his former gang; the defendants refused to place him in

protective custody; and he was subsequently sexually assaulted. 

Because Thomas has not shown that the defendants were aware of

substantial risk that he would be sexually assaulted and

disregarded that risk by failing to take reasonable measures to

abate it, Thomas has not shown that the district court erred in

dismissing his claim. See Farmer v. Brennan, 511 U.S. 825, 847

(1994).

Thomas argues that the district court erred in dismissing

his claim without ruling on his objections to the defendants’

Martinez report.** Thomas’ claim lacks merit as the district

court reviewed the record, including Thomas’ objections, before

dismissing his claim.

Thomas argues that the district court erred in dismissing

his claim under 28 U.S.C. § 1915(e) because he paid a partial

filing fee. Because Thomas was proceeding IFP in the district

court under 28 U.S.C. § 1915(b), the district court did not err

in dismissing Thomas’ claim under 28 U.S.C. § 1915(e).

Thomas argues that the district court abused its discretion

in denying his motion for appointment of counsel. Because Thomas

has not shown that his case presented exceptional circumstances

warranting the appointment of counsel, he has not shown that the

district court abused its discretion in denying his motion for

appointment of counsel. See Cooper v. Sheriff, Lubbock County,

Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
No. 00-40449 

-3-

Thomas has filed a motion for appointment of counsel on

appeal. Because Thomas’ case does not present exceptional

circumstances, his motion is DENIED. See Cupit v. Jones, 835

F.2d 82, 86 (5th Cir. 1987). Thomas’ motion for reconsideration

is also DENIED.

AFFIRMED; MOTIONS DENIED.