IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40277 Conference Calendar

CRAIG DUANE PENNELL,

Plaintiff-Appellant,

versus

ANDY MASSENGIL; JANICE O’GUINN; R. PROCTOR, Head of Class,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:99-CV-76 -------------------- December 11, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges

PER CURIAM:*

Craig Pennell, Texas inmate #704801, appeals the district

court’s summary judgment in favor of the defendants on his

failure-to-protect claim. We review a grant of

summary judgment applying the same standard as the court below.

Deas v. River West, L.P.,

(5th Cir. 1998).

To establish a failure-to-protect claim, Pennell 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, 59

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40277 -2-

F.3d 530, 533 (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 v. Brennan,

(1994)). A prison

official acts with deliberate indifference “only if he knows that

inmates face a substantial risk of serious harm and disregards

that risk by failing to take reasonable measures to abate it.”

Farmer,

.

Pennell’s argument that the district court erred is premised

on his conclusion that the basis for the district court’s summary

judgment was the absence of proof that Pennell had acquired

administrative-segregation status on the date of the attack. He

argues that this determination by the district court was

erroneous because (1) the defendants removed from the documents

submitted to the district court the “I-169" form signed by Warden

Massengill on December 18, 1997, which placed him in

administrative segregation; (2) the evidence submitted by the

defendants refutes their argument that Pennell was never assigned

administrative-segregation status prior to the attack; (3) the

December 18, 1997, “recommendation” that he be placed in

administrative segregation was a de facto change in custody,

despite the fact that no hearing had yet been held; and (4) a

hearing was not necessary to officially change his status to

administrative segregation as is evidenced by the fact that upon

his return from the hospital, he was immediately placed in

administrative segregation. No. 01-40277 -3-

Pennell, however, provided no evidence in opposition to

summary judgment that the defendants were aware of facts from

which the inference could be drawn that a substantial risk of

serious harm existed by placing him in a cell with the inmate who

attacked him. His argument is based on the erroneous assumption

that placing an inmate who is on administrative-segregation

status in a cell with any other inmate is per se evidence of

deliberate indifference. Pennell has not adduced any evidence

which creates a genuine issue of material fact whether the

defendants knew that a serious risk of harm to him would arise by

placing him in a cell with a particular inmate. He has therefore

not shown that the district court erred in its summary-judgment

determination.

Pennell further argues that the district court erred in

denying his motion to modify discovery. We review a district

court’s discovery determinations for an abuse of discretion.

Beattie v. Madison County Sch. Dist.,

(5th Cir.

2001). Pennell’s argument is devoid of an explanation how

discovery would have assisted in creating a genuine issue of

material fact. He has therefore not established that the

district court abused its discretion. See

(appellant

must show why additional discovery is necessary and how that

discovery will create a genuine issue of material fact).

AFFIRMED.