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

                                                                    FILED
                                                                  January 21, 2009
                                 No. 08-10208
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

JAMES CURBOW

                                            Plaintiff-Appellant

v.

STACY L JACKSON, Assistant Warden; GARY J STANTON, Security
Lieutenant; JONATHAN L LEUCK, Security Sergeant; WAYNE A HINKLE,
Security Officer; KELLI WARD, Region VI Administrative Assistant

                                            Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                             USDC No. 1:06-CV-8


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      James Curbow, Texas prisoner # 900052, moves for leave to proceed in
forma pauperis (IFP) following the district court’s order denying IFP status and
certifying that his appeal is not taken in good faith. The district court dismissed
Curbow’s 42 U.S.C. § 1983 suit as frivolous.




      *
      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should not be published and is not precedent except under the limited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. 08-10208

      Curbow argues that the defendants failed to protect him and were
deliberately indifferent to his safety when they called for outdoor recreation after
being warned that a prison riot would occur. Curbow was stabbed and beaten
during the riot. Curbow argues that the defendants obviously knew that the riot
would ensue because they had been told by a prison instructor who heard about
the planed riot from an inmate and because they were prepared with gas
grenades.
      Curbow’s “appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted). Curbow’s motion for leave to
proceed IFP is therefore granted. This court may, however, address the merits
of Curbow’s claims at this time and may affirm on any ground supported by the
record. Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
      Even if Curbow has alleged sufficient circumstantial evidence to support
a finding that the defendants were “subjectively aware of a risk to inmate health
or safety,” see Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003), “[n]o liability
exists, . . . if an official reasonably responded to a known substantial risk, ‘even
if the harm was ultimately not averted.’” Longoria v. Texas, 473 F.3d 586, 593
(5th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 844 (1994)). Curbow
has alleged that prison supervisors repositioned security officers, equipped them
with full riot gear, and placed them in the recreation yards. Curbow admits that
prison officials were positioned and ready to respond prior to recreation being
called. The district court’s conclusion that the defendants reasonably responded
to a potentially substantial risk was not an abuse of discretion. See Davidson v.
Cannon, 474 U.S. 344, 345-48 (1986); Stanley v. Foster, 464 F.3d 565, 569 (5th
Cir. 2006).
      Curbow also argues that his due process rights were violated because he
was found guilty in a prison disciplinary proceeding of fighting in the riot.

                                         2
                                 No. 08-10208

Curbow argues that the determination of his guilt was based solely on Hinkle’s
false testimony. Curbow lost good-time credits in the proceeding, along with
other privileges.
      Curbow’s due process claim is not cognizable in his § 1983 suit because a
judgment in his favor “would necessarily imply the invalidity” of his prison
disciplinary proceeding. Heck v. Humphrey, 512 U.S. 477, 481-82, 486-87 (1994);
see also Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc). The
district court’s judgment is affirmed.
      IFP GRANTED; AFFIRMED.




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