1 United States Court of Appeals,

Fifth Circuit.

No. 95-10209

Summary Calendar.

Ricky NEALS, Plaintiff-Appellant,

v.

Tommy NORWOOD, William L. Stephens, and Ronald Drewry, et al.,

Defendants-Appellees.

July 28, 1995.

Appeal from the Uni ted States District Court For the Northern

District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Proceeding pro se and in forma pauperis (IFP), Appellant Ricky

Neals, (Neals ) an inmate in the Texas Department of Criminal

Justice—Institutional Division (TDCJ) filed three complaints

pursuant to 42 U.S.C. § 1983, alleging that v arious prison

personnel violated his constitutional rights. Because all of the

complaints related to the same facts, they were consolidated by the

district court. The consolidated case was dismissed pursuant to 28

U.S.C. § 1915(d) based on a finding that Neals's claims were

factually and legally frivolous. We affirm.

FACTS

On September 23, 1993, Neals was assaulted and threatened by

members of a prison gang, who demanded payment and sexual favors in

return for protecting Neals from future harm. Neals brought the

threats to the attention of prison officials, including his two2

case managers, a guard, and a prison classification commi ttee in

order to gain protection from future attacks by those inmates.

Based on Neals's refusal to be placed in Building Eight of the

Robertson Unit where the assault occurred, he was housed in

solitary confinement and in a type of confinement referred to as

"transit," for about six months, after which he was transferred off

the unit entirely . In September 1993, as part of a disciplinary

hearing held because of his refusal to be placed in Building Eight,

Neals listed the names of two men in that building who had

t hreatened him. Witness statements supported this claim. Those

two inmates were transferred out of Building Eight on September 24,

1994.

In response to Neals's complaints regarding classification,

the Robertson Unit Classification Committee reviewed the

information supplied by Neals on four separate oc casions between

the date of the assault and his eventual transfer off the unit. At

each hearing, Neals was offered the opportunity to name names or

give other evidence as to the danger he feared, and in each case,

the committee denied his reclassi fication or transfer due to

insufficient evidence to support his claim. Neals also filed 33

grievances during the same time frame, but again prison officials

found that he had failed to provide enough information to support

his claim of danger.

PROCEDURAL HISTORY

Neals filed three complaints pursuant to 42 U.S.C. § 1983,

alleging that he told his two case managers, a guard, and the3

members of a prison classification committee about the Se ptember

attack and threats, in order to gain protection from future attacks

by those inmates. He stated that he sought to be placed in either

protective custody or "safe keeping," or be reclassified out of the

general prison population so that he would not be assigned to

Building Eight. He argued that the defendants were "deliberately

indifferent to [his request for] protective custody, safe keeping

or transfer," and that the prison officials " negligently

jeopardize[d] the safety of Plaintiff" by not removing him from the

general prison population. Because each time he refused placement

in Building Eight he was subjected to disciplinary actions, Neals

also requested that those be removed from his prison record.

After the three ca ses were consolidated, the matter was

transferred to a magistrate judge pursuant to Neals's written

consent. The magistrate judge conducted an evidentiary hearing

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

clarify the substance of Neals's clai m. The magistrate judge

concluded that, at most, Neals had alleged negligence on the part

of defendants. Because negligence will not support Neals's claims

under § 1983, the magistrate judge dismissed the consolidated

action as frivolous.

DISCUSSION

A. Consent to proceed before the magistrate judge.

On August 25, 1994, Neals signed a consent to proceed before

a magistrate judge pursuant to 28 U.S.C. § 636(c). Under § 636(c),

a magistrate judge may conduct any or all proceedings in a civil4

matter and order the entry of judgment in the case when, one, the

parties have consented and tw o, the district court has specially

designated the magistrate judge to exercise such jurisdiction.

When a magistrate judge enters judgment pursuant to this

statute, abse nce of the appropriate consent and reference or

special designation order results in a lack of jurisdiction (or at

least fundamental error that may be complained of for the first

time of appeal). M endes Jr. Int'l Co. v. M/V Sokai Maru, 978 F.2d

920, 924 (5th Cir.1992). The record does not contain a consent

from the defendants. However, because they had not been served,

t hey were not parties to this action at the time the magis trate

entered judgment. Therefore, lack of written consent from the

defendants did not deprive the magistrate judge of jurisdiction in

this matter.

B. Frivolousness

District courts have broad discretion in determining whether

a complaint filed IFP is frivolous so as to warrant dismissal.

Mendoza v. Lynaugh, 989 F.2d 191 (5th Cir.1993).

Ne als argues that prison officials wrongly denied his

requests to b e reclassified for protective custody, safekeeping

status, or for a unit transfer, all in disregard of his safety. To

establish a failure-to-protect claim under § 1983, Neals must show

that he is incarcerated under conditions posing a substantial risk

of serious harm and that prison officials were deliberately

indifferent to his need for protection. F armer v. Brennan,

---

U.S. ----, ----, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). In5

order to act with deliberate indifference, "the official must both

be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the

inference." Id. at ----, 114 S.Ct. at 1979.

Whether a prison official had the requisite kno wledge of a

substant ial risk is a question of fact subject to

demonstration in the usual wa ys, including inference from

circumstantial evidence, ... and a factfinder may conclude

that a prison official knew of a substantial risk from the

very fact that the risk was obvious.

Id. at ----, 114 S.Ct. at 1981.

Under Wilson v. Budney, 976 F.2d 957 (5th Cir.1992), a prison

inmate does not have a protectable liberty or property interest in

his custodial class ification and an inmate's disagreement with a

classification is insufficient to establish a constitutional

violation.

The court's determination that Neals's allegations amounted

to a claim of negligence, and therefore did not raise a

non-frivolous constitutional claim was not an abuse of discretion.

We AFFIRM the dismissal of Neals's action pursuant to 28 U.S.C. §

1915(d).