IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40689 Conference Calendar

ANDREW BRADY FISHER,

Plaintiff-Appellant,

versus

THOMAS BUTLER, Classification Officer; CHARLES FRIZZELL, Chief Classification Officer; RICHARD D. TAYLOR, Texas Department of Criminal Justice, Inmate; CHARLES WILLIAMSON, Warden,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:01-CV-37 -------------------- December 11, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Andrew Brady Fisher, Texas inmate # 654553, proceeding pro

se and in forma pauperis, appeals the dismissal as frivolous of

his

complaint against fellow prisoner Richard D.

Taylor and prison officials Thomas Butler, Charles Frizzell, and

Charles Williamson. His claims stem from his assignment to the

same cell as Taylor, which culminated in an attack by his

cellmate in which Fisher suffered a head injury. Fisher claims

that the defendant prison officials failed to protect him against

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40689 -2-

Taylor, who is alleged to have psychological problems and to have

assaulted numerous other inmates, facts alleged to have been

known by the prison officials. He claims that Frizzell’s failure

to properly supervise Butler resulted in his continued assignment

to Taylor’s cell.

Prison officials have a duty under the Eighth Amendment to

protect inmates from violence at the hands of other prisoners.

Farmer v. Brennan,

(1994). 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). There are two requirements for a

constitutional violation to occur. Woods v. Edwards,

(5th Cir. 1995). First, the condition “must be so

serious as to deprive prisoners of the minimal civilized measure

of life’s necessities, as when it denies the prisoner some basic

human need.”

(internal punctuation and citation omitted).

Second, the prison official must have been “deliberately

indifferent to inmate health or safety.”

(internal

punctuation and citation omitted). 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,

. No. 01-40689 -3-

Fisher’s allegations, which are accepted as true, do not

provide an arguable basis for his failure-to-protect claim.

Fisher, who related in his brief to this court that he stands six

feet, four inches tall and weighs 330 pounds, stated in his

objections to the magistrate judge’s report that “[t]he [prison

official] Defendants assumed because of Plaintiff’s size that he

wasn’t in danger of being assaulted by [Taylor].” This

allegation is simply incompatible with a finding that the

defendant prison officials were deliberately indifferent toward

the risk faced by Fisher. Moreover, Fisher’s remaining

allegations fail to provide an arguable basis for the claim that

the officials were aware that he was under a substantial risk of

harm prior to the incident. The district court did not abuse its

discretion in dismissing the failure-to-protect claim as

frivolous.

Nor did the district court err in dismissing Fisher’s

retaliation claim as frivolous. A prisoner asserting a

retaliation claim must establish (1) a specific constitutional

right, (2) the defendant's intent to retaliate against the

prisoner for his or her exercise of that right, (3) a retaliatory

adverse act, and (4) causation. McDonald v. Stewart,

(5th Cir. 1998). Fisher does not allege that he filed

grievances or made complaints to prison officials prior to his

assignment as Taylor’s cellmate, and thus he fails to furnish an

arguable basis for causation. Further, inasmuch as the defendant

prison officials foresaw no risk, Fisher’s allegations supply no No. 01-40689 -4-

arguable basis for a finding that the officials intended to

retaliate against him.

Fisher has not briefed any argument challenging the

dismissal of his claim against his fellow inmate Taylor, and the

issue is therefore waived. See Yohey v. Collins,

(5th Cir. 1993).

The district court’s judgment is in all respects AFFIRMED.

The district court’s dismissal of Fisher’s action as frivolous

counts as a "strike" for purposes of

(g). See

Adepegba v. Hammons,

(5th Cir. 1996).

Fisher is warned that if he accumulates three "strikes" pursuant

to

(g), 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).

AFFIRMED; STRIKE WARNING ISSUED.