IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11008 Conference Calendar

KENNETH McGREGOR,

Plaintiff-Appellant,

versus

WHITE, Warden; REAGEN, Assistant Warden; CHANCE, Major; D. POLLOCK, Captain; CAPTAIN SAVERS; MRS. JOHNSON, Chief of Classification; J. RODRIGUEZ, Correctional Officer III; STILES, Correctional Officer III,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:96-CV-153 --------------------

August 24, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

Kenneth McGregor (# 564450), a state prisoner, has appealed

the magistrate judge’s order granting the defendants’ motion for

judgment as a matter of law. The standard of review is de novo.

Allen v. Pennsylvania Engineering Corp.,

(5th

Cir. 1996).

Prison officials have a duty under the Eighth Amendment to

protect inmates “from violence at the hands of other prisoners.”

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11008 -2-

Farmer v. Brennan,

(1994) (citation and

internal quotation omitted). To establish a failure-to-protect

claim, an inmate 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).

“In 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.’”

(quoting Farmer,

).

McGregor was involved in a fight with another inmate, Dwight

Olige. The magistrate judge held that the defendants were

entitled to judgment because McGregor had failed to present any

evidence showing that the defendants knew or had reason to know

that Olige was violent. McGregor argues that Olige’s records

will establish his violent tendencies and that the defendant had

failed to rebut his allegations. McGregor bore the burden of

proof. McGregor has failed to provide the court with a

transcript of the trial and Olige’s disciplinary records are not

in the record on appeal. McGregor has failed to show that the

magistrate judge erred in granting the motion for judgment as a

matter of law.

Because the appeal is frivolous, it is DISMISSED. See

Howard v. King,

(5th Cir. 1983); 5th Cir. R.

42.2. We note that McGregor has now accumulated at least two

strikes for purposes of

(g). We caution McGregor No. 98-11008 -3-

that once he accumulates three strikes, he may not proceed in

forma pauperis in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury. See

(g).

APPEAL DISMISSED AS FRIVOLOUS.