IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40766 Summary Calendar

RICKY TARRANT,

Plaintiff-Appellant,

versus

ARTHUR H. VELASQUEZ, Warden; WINSTON YOUNG, Major,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-146 -------------------- November 30, 2001 Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Ricky Tarrant, Texas prisoner # 569469, challenges the lower

court’s dismissal of his pro se civil rights lawsuit, pursuant to

, as frivolous or, alternatively, for failure to

state a claim, pursuant to 28 U.S.C. § 1915A. Tarrant renews his

claim that the appellees failed to protect him from a July 5,

2000, assault at the hands of a member of a prison gang. He

contends that Warden Velasquez and Major Young were aware of the

threat he received from a gang member but were deliberately

indifferent to that threat. If his brief is liberally construed,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40766 -2-

Tarrant argues that the magistrate judge erred in determining

that his complaints were vague and insufficient to place the

prison officials on notice of a real threat of harm. He urges

that the succession of letters he wrote and personal complaints

he made gave the prison officials good reason to believe he would

be assaulted and needed protection, and he contends that he was

not required to prove that he was in danger to a moral certainty

nor was he required to wait until he was actually assaulted to

prove his need for protection.

A prisoner’s § 1983 complaint may be dismissed prior to

service on the defendants if it is frivolous, malicious, or fails

to state a claim upon which relief may be granted. See 28 U.S.C.

§ 1915A(b). A complaint is frivolous “if it lacks an arguable

basis in law or fact.” Talib v. Gilley,

(5th

Cir. 1998). This court reviews dismissals as frivolous for an

abuse of discretion. See

A dismissal for failure to state a

claim upon which relief may be granted is reviewed de novo. See

Black v. Warren,

(5th Cir. 1998). All of the

plaintiff’s factual allegations in his complaint are accepted as

true, and the dismissal will be upheld only if it “`appears that

no relief could be granted under any set of facts that could be

proven consistent with the allegations.’” Moore v. Carwell,

(5th Cir. 1999)(citation omitted).

Tarrant alleged that he informed both Warden Velasquez and

Major Young that he had received a specific threat of harm from

an unidentified member of the prison gang. He also submitted a

letter from a fellow inmate who observed the gang member making No. 01-40766 -3-

that threat. Tarrant explained that the threat was credible

because he had previously been threatened and beaten by a member

of the prison gang. Tarrant alleged that despite his repeated

requests for protection, the defendants did nothing to ensure his

safety or to investigate the threat. He thus alleged that there

was a substantial risk of excessive harm to his safety, that

Warden Velasquez and Major Young were aware of the risk, and that

they knowingly disregarded that risk by failing to investigate

the threat or place him in protective custody. The allegations

of his complaint were neither factually nor legally frivolous,

nor did they fail to state a claim under the Eighth Amendment.

See Farmer v. Brennan,

(1994); see also Harper

v. Showers,

(5th Cir. 1999); Moore,

; Talib,

.

Tarrant is correct that he was not required to wait to be

assaulted before obtaining relief or demonstrating the viability

of the threat against him. See Farmer,

.

Although the magistrate judge found that his allegations

regarding the threat made by an unidentified gang member were too

vague to put the defendants on notice, there is no requirement

that prison officials be aware of the exact identity of the

prospective assailant before Eighth Amendment protections attach.

See

at 849 n.10. The Eighth Amendment requires only that

officials be aware of facts from which an inference could be

drawn that a substantial risk of harm exists and that they draw

that inference.

. Tarrant’s allegation that he had

suffered continual problems with the prison gang, as well as his No. 01-40766 -4-

letters and complaints to both Warden Velasquez and Major Young,

were specific enough to meet this standard. Whether the facts

will ultimately prove only negligence rather than deliberate

indifference is not a question to be answered at this stage of

the proceedings. See 28 U.S.C. § 1915A. Accepting all of

Tarrant’s allegations as true, we hold that he has stated a claim

under the Eighth Amendment.

Dismissal of Tarrant’s complaint under 28 U.S.C. § 1915A was

thus error. Accordingly, the judgment of dismissal is VACATED,

and the case is REMANDED for further proceedings.

Tarrant has also filed a “Motion to Overturn District

Court’s Decision and to Issue a[n] Injunctive Order Placing

Plaintiff in Protective Custody.” Tarrant seeks to be placed in

protective custody at the Stiles Unit, where he is now

incarcerated, renewing his assertion that the prison gang plans

to kill him and that he is in constant fear for his life. The

motion is DENIED because the appellees do not have custody over

Tarrant and could not grant the requested relief.

VACATED AND REMANDED; MOTION DENIED.