IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-11071 Summary Calendar

ADAM GUZMAN,

Plaintiff-Appellant,

versus

EDDIE WHEELER; CAROLYN A. POPE; CHARLES BELL,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:96-CV-52 - - - - - - - - - - February 20, 1998 Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Adam Guzman, Texas prisoner # 667535, appeals from the

dismissal of his

complaint for failure to state

a claim. Guzman’s challenge to a disciplinary charge, which was

later overturned, fails to state a constitutional violation.

Sandin v. Connor,

(1995); Luken v. Scott,

(5th Cir. 1995), cert. denied,

(1996). Accordingly, the magistrate judge did not err in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 96-11071 -2-

dismissing that claim. The dismissal of Guzman’s challenge to

the disciplinary case is AFFIRMED.

The magistrate judge’s dismissal of Guzman’s failure-to-

protect claim, however, was error. In the dismissal, the

magistrate judge cited Fed. R. Civ. P. 12(b)(6), 42 U.S.C.

§ 1997e(c)(1), and “42 [sic] U.S.C. 1915(c)(2).” Because the

dismissal was prior to service of process or any Rule 12(b)(6)

motion, the most appropriate authority for such a dismissal is

§ 1915(e)(2)(B)(ii), because Rule 12(b)(6) contemplates that

there will be a motion to dismiss the complaint. For the

purposes of this opinion, we assume without deciding that the

standard of review for a § 1915(e)(2)(B)(ii) dismissal based on

failure to state a claim is de novo. See Mitchell v. Farcass,

(11th Cir. 1997).

To establish a failure-to-protect claim, the plaintiff must

show that he was "incarcerated under conditions posing a

substantial risk of serious harm and that prison officials were

deliberately indifferent to his need for protection." Neals v.

Norwood,

(5th Cir. 1995). A prison official

acts with deliberate indifference if he knows of and disregards

an excessive risk to inmate health or safety; 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. Farmer v. Brennan,

(1994). No. 96-11071 -3-

Although the magistrate judge stated that there is nothing

in the record to indicate that the prison authorities were put on

notice, Guzman alleged in his complaint and again at the Spears

hearing that he had notified prison authorities prior to the

first attack and that he had notified them again after the second

attack. His prison file also contains his request for

safekeeping and a transfer prior to the first alleged attack.

Regardless, the lower court “may not use prison records to

counter a plaintiff’s Spears testimony.” Varnado v. Lynaugh,

(5th Cir. 1991). Guzman’s factual allegations

in his complaint and his testimony during the Spears hearing

presented facts that are not baseless, and they could show a

constitutional violation if the prison officials failed to take

reasonable measures to protect him. Accordingly, the dismissal

of Guzman’s failure-to-protect claim for failure to state a claim

was error. The dismissal of Guzman’s failure-to-protect claim is

REVERSED, and the case is REMANDED to the district court for

further proceedings.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.