IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40069
Conference Calendar
TERRY D. SMITH,
Plaintiff-Appellant,
versus
JAMES BRADSHAW, Proprietor,
Bradshaw State Jail; J.C. Conner,
Warden, Bradshaw State Jail;
BRADSHAW STATE JAIL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:95-CV-663
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June 26, 1996
Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Terry D. Smith, Texas prisoner #713234, appeals from the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 action as
frivolous under 28 U.S.C. § 1915(d). Smith argues that the
magistrate judge abused her discretion in dismissing his § 1983
action as appellees allowed an argument to escalate and did not
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-40069
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stop an attack on Smith by other inmates. Because Smith did not
allege that the appellees were aware of a known threat or a
substantial risk of serious harm, the magistrate judge did not
abuse her discretion in dismissing Smith’s failure-to-protect
claim as frivolous under § 1915(d). Farmer v. Brennan, 114 S.
Ct. 1970, 1976 (1994); Jacquez v. Procunier, 801 F.2d 789, 792
(5th Cir. 1986).
Smith also argues that appellees were deliberately
indifferent to his serious medical needs as they failed to
provide adequate medical care after the inmate attack. Because
Smith’s allegations amount to no more than negligence or medical
malpractice, the magistrate judge did not abuse her discretion in
dismissing Smith’s lack-of-adequate-medical-care claim as
frivolous under § 1915(d). See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991).
Smith’s appeal is without factual or legal basis and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, his appeal is DISMISSED AS FRIVOLOUS. 5th
Cir. R. 42.2. We caution Smith that any additional frivolous
appeals filed by him or on his behalf will invite the imposition
of sanctions. To avoid sanctions, Smith is further cautioned to
review any pending appeals to ensure that they do not raise
arguments that are frivolous because they have been previously
decided by this court.
APPEAL DISMISSED; SANCTION WARNING ISSUED.