           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             May 1, 2009
                                     No. 08-40597
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

LYLE KEVIN BRIDGEWATER

                                                   Plaintiff-Appellant

v.

TIMOTHY SIMMONS, Senior Warden; MARK W DUFF, Chief of
Classifications; XEAVER KING, Disciplinary Captain; A C WORTHAM,
Sergeant; KAREN KERSTENS, Sergeant

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:07-CV-218


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Lyle Kevin Bridgewater, Texas prisoner # 1398768, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C.
§ 1915A(b)(1). He moves this court for the appointment of counsel and to have
his case remanded for a jury trial before a different judge in the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40597

      The district court is directed to dismiss a complaint filed by a prisoner if
the complaint is frivolous or fails to state a claim upon which relief may be
granted. See id. § 1915A(b)(1). Because Bridgewater’s claims were dismissed
pursuant to Section 1915A, this court’s review is de novo. Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous “if it lacks an arguable
basis in fact or law.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal
quotation marks omitted).
      This appeal involves Bridgewater’s claims that prison officials were
deliberately indifferent to his claims that his life was endangered following a
fight with a gang-affiliated fellow inmate, and that this deliberate indifference
resulted in physical harm to him. Contrary to Bridgewater’s assertions that
prison officials totally ignored the danger to his life, prison officials moved
Bridgewater to a new housing pod where the inmate with whom Bridgewater
fought was not housed. There is no evidence in the record that the prison
officials who changed Bridgewater’s housing assignment actually inferred from
the facts stated by Bridgewater that Bridgewater faced a substantial risk of
harm from other gang members as a result of the fight. Absent evidence of such
an inference and in light of prison officials’ attempt to protect Bridgewater by
changing his housing assignment, Bridgewater’s deliberate indifference claims
were correctly dismissed as frivolous. See Farmer v. Brennan, 511 U.S. 825, 832-
34, 837, 844 (1994); Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996) (en
banc); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).
      The dismissal of Bridgewater’s complaint is affirmed, and his outstanding
motions are denied.        For purposes of the three-strikes provision of
Section 1915(g), the district court’s dismissal under Section 1915A counts as a
strike.   See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Accordingly, Bridgewater is warned that if he accumulates three strikes he may
not thereafter proceed in forma pauperis in any civil action or appeal filed while



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he is incarcerated or detained in any facility unless he is under imminent danger
of serious physical injury. See 28 U.S.C. § 1915(g).
      AFFIRMED; ALL OUTSTANDING MOTIONS DENIED; SANCTION
WARNING ISSUED.




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