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.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-146
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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
42 U.S.C. § 1983, 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that this opinion should not be published and is not precedent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
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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, 138 F.3d 211, 213 (5th
Cir. 1998). This court reviews dismissals as frivolous for an
abuse of discretion. See id. A dismissal for failure to state a
claim upon which relief may be granted is reviewed de novo. See
Black v. Warren, 134 F.3d 732, 734 (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, 168
F.3d 234, 236 (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
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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, 511 U.S. 825, 837 (1994); see also Harper
v. Showers, 174 F.3d 716, 718 (5th Cir. 1999); Moore, 168 F.3d at
236; Talib, 138 F.3d at 213.
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, 511 U.S. at 845.
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 id. 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. Id. at 837. Tarrant’s allegation that he had
suffered continual problems with the prison gang, as well as his
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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.