                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit


                              No. 98-30615
                            Summary Calendar

                           VERNON L. ORANGE,

                                                     Plaintiff-Appellant,

                                 VERSUS

        JACK STRAIN, Sheriff of St. Tammany Parish, et al,

                                                     Defendant-Appellee.



           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           (97-CV-1010-T)


                             August 2, 1999

Before JOLLY, DAVIS, and     EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Vernon L. Orange appeals the district

court’s grant   of    summary   judgment   against   him   in   this   case.

Orange, now a prisoner at the Louisiana State Penitentiary in

Angola, filed this suit alleging violations of his constitutional
rights during his incarceration at the St. Tammany Parish Jail.

Orange’s allegations arise out of a beating he allegedly suffered

at the hands of another prisoner and the medical treatment he

received for the injuries suffered from this beating.

     The magistrate judge hearing this case pursuant to 28 U.S.C.


    *
       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this opinion should not be published and is not precedent except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.
§ 636(c) granted summary judgment to the numerous defendants.

Orange appeals this grant of summary judgment on a number of

grounds.    We affirm the judgment of the magistrate judge with the

following exception.

     Orange alleged in his sworn complaint a “failure to protect”

claim against Deputy Casey Cagle, Sr., who was then working at the

St. Tammany Parish Jail.     In this complaint, Orange stated that he

had warned Cagle of an impending physical confrontation with

another prisoner.     Orange alleged that Cagle then left his post

without cause, at which point Orange was attacked by the other

prisoner. Cagle, in an affidavit supporting his motion for summary

judgment,   denied   that   he   left       his   post   during   the   night   in

question, but did not dispute or comment on Orange’s claim that he

had warned Cagle of the impending physical attack by the other

prisoner.    In Orange’s response affidavit, Orange again alleged

that Cagle left his post unattended, but did not re-allege that he

(Orange) had warned Cagle of the impending attack.

     The magistrate judge, in ruling that there was no genuine

issue of material fact with respect to Orange’s claim against

Cagle, emphasized that Orange did not re-allege that he had warned

Cagle of the impending attack.      However, because Cagle’s affidavit

did not deny that Orange warned him of the impending attack, the

magistrate judge should have considered Orange’s allegation of his

warning to Cagle contained in his complaint in determining whether

summary judgment was appropriate on Orange’s failure to protect

claim against Cagle.    We therefore remand this specific issue for


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further proceedings consistent with this opinion.   The magistrate

judge’s judgment is otherwise affirmed.



AFFIRMED in part, VACATED and REMANDED in part.




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