                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 10, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-30576
                           Summary Calendar


DAN MITCHELL,

                                      Plaintiff-Appellant,

versus

TIM WILKINSON; CURTIS WOODARD; RODRICK KIDD; MICHAEL HORNE,

                                      Defendants-Appellees.


                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 1:04-CV-2023
                       --------------------

Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

     Dan Mitchell, Texas prisoner # 438855, appeals the dismissal

of his civil rights complaint under 42 U.S.C. § 1983 against

Warden Tim Wilkinson, Lt. Curtis Woodard, Correctional Officer

Michael Horne, and fellow inmate Rodrick Kidd alleging that the

prison officials failed to protect him from an attack by Kidd in

April of 2004.    The district court dismissed Mitchell’s complaint

as frivolous and for failing to state a claim under 28 U.S.C.

§ 1915(e)(2)(B).


     *
       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this opinion should not be published and is not precedent except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.05-30576
                                -2-

     This court reviews the dismissal of a complaint under

§ 1915(e)(2)(B)(i) as frivolous for abuse of discretion.     Geiger

v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).   This court reviews

the dismissal of a complaint under § 1915(e)(2)(B)(ii) for

failure to state a claim under the same de novo standard of

review applicable to dismissals made pursuant to FED. R. CIV. P.

12(b)(6).   Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).

Because the dismissal referred to both sections of the statute,

review will be de novo.   See Geiger, 404 F.3d at 373.

     To prevail on a claim under § 1983, a plaintiff must show

that the defendant deprived him of a right secured by the

Constitution and laws of the United States while acting under

color of state law.   Manax v. McNamara, 842 F.2d 808, 812 (5th

Cir. 1988).   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, 59 F.3d 530, 533 (5th Cir. 1995) (citing Farmer v.

Brennan, 511 U.S. 825 (1994)).

     Mitchell’s allegations that Lt. Woodard knew of animosity

between Mitchell and Kidd and that the animosity would result in

a spontaneous attack is not supported by any specific factual

allegation and is conclusional.    See Brinkmann v. Johnston, 793

F.2d 111, 113 (5th Cir. 1986).    On appeal, Mitchell has pointed

to no specific factual allegation made in the district court that
                            No.05-30576
                                -3-

supports his assertion that Woodard was aware of any excessive

risk to Mitchell’s safety posed by Kidd.   At best, Mitchell’s

allegations show that Kidd saw and seized a chance opportunity

when Woodard brought Mitchell to the shower in restraints.

     For the first time on appeal, Mitchell alleges that Woodard

did not attempt to stop the assault by Kidd.   This alleged fact

was not presented to the district court and will not be

considered by this court.   Theriot v. Parish of Jefferson, 185

F.3d 477, 491 n.26 (5th Cir. 1999).   The district court did not

err in dismissing Mitchell’s claim.

     AFFIRMED.
