                                UNITED STATES COURT OF APPEALS
                                            Tenth Circuit
                                 Byron White United States Courthouse
                                          1823 Stout Street
                                       Denver, Colorado 80294
                                           (303) 844-3157

Patrick Fisher                                                                         Elisabeth A. Shumaker
Clerk                                                                                  Chief Deputy Clerk



                                                 April 29, 1996



          TO: ALL ELECTRONIC RECIPIENTS OF THE CAPTIONED OPINION

          RE:    95-1379, McKnight v. Zavaras
                 Filed April 24, 1996 by Judge Seymour



                 Please be advised of the fillowing correction to the captioned decision:

                 In the 23rd line of the caption for defendants- appellees, the state of Colorado is
          incorrectly spelled Colorad.

                 Please make this correction to your copy.




                                                                   Very truly yours,

                                                                   Patrick Fisher,
                                                                   Clerk

                                                                   By:

                                                                   Barbara Schermerhorn
                                                                   Deputy Clerk
                UNITED STATES COURT OF APPEALS
Filed 4/24/96
                              TENTH CIRCUIT



PAUL DELANO MCKNIGHT,

      Plaintiff-Appellant,

v.

ARISTEDES ZAVARAS, Colorado Department of
Corrections, in his official capacity for preliminary
injunction only; LOU HESSE, Warden/Superintendent of
Centennial Correctional Facility; IRVING JACQUEZ,
Major of Housing at Centennial Correctional Facility;
MAJOR FOSHEE, Major of Security at Centennial
Correctional Facility; MIKE THEISON, Lieutenant,
Security Shift Commander between 3:00 pm and 11:00 pm
on or about July 2, 1993 at Centennial Correctional
                                                              No. 95-1379
Facility; CAPTAIN HOLDITCH, B Unit Supervisor at
                                                          (D.C. No. 95-S-1039)
Centennial Correctional Facility; LIEUTENANT
                                                               (Colorado)
BARDAZONA, B Unit Lieutenant at Centennial
Correctional Facility; SERGEANT DIRECTO, B Unit
Sergeant at Centennial Correctional Facility; OFFICER
PAULA (last name unknown), B Unit Correctional Officer
at Centennial Correctional Facility; JANE DOE, medical
Doctor at St. Thomas Moore in Canon City, Colorado on
duty July 1, 1993 between 10:00 pm ato 11:00 pm;
THOMAS COOPER, Warden/Superintendent of Colorado
Territorial Correctional Facility; JOHN AND/OR JANE
DOE, infirmary security officer at Colorado Territorial
Correctional Facility and JANE DOE, Nurse on duty July
1 and 2, 1993 between 11:00 pm and 7:00 am at Colorado
Territorial Correctional Facility Infirmary,

      Defendants-Appellees.
                              ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.



       After examining the briefs and appellate record, this panel has unanimously

determined that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered

submitted without oral argument.

       Paul Delano McKnight,1 a state prisoner, brought a pro se civil rights action under

42 U.S.C. § 1983 against various prison officials for violations of his constitutional

rights. Sua sponte, the district court dismissed his claims as frivolous under 28 U.S.C. §

1915(d). He appeals and we affirm.

       Mr. McKnight contends that defendants violated his constitutional rights during

events surrounding his stabbing by another inmate. We recount his version of what

happened, which we accept as true for the purposes of this appeal. Mr. McKnight, who is

black and a devout Muslim, was stabbed in the abdomen by another inmate, a known

white separatist, who attached a crude knife to a broomstick and attacked Mr. McKnight

through the food tray slot on his cell door. Mr. McKnight received prompt medical


       *
        This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
10th Cir. R. 36.3.
       1
         Appellant’s name is variously rendered as “McKnight” and “McKnight-El.” For the
sake of brevity, we use the former variant.

                                                 -3-
attention. He was seen by a nurse at the correctional facility, and then transported by

ambulance to a local hospital with which the prison had contracted to treat inmates. A

doctor examined the wound but provided no other care. Mr. McKnight was then returned

to the prison infirmary. Throughout that night, Mr. McKnight complained of pain,

bleeding and other symptoms, but the nurse on duty only offered to provide aspirin or

Tylenol. When a different nurse came on duty in the morning, she examined him and

summoned a physician’s assistant, who started an intravenous tube and arranged for an

ambulance to transport Mr. McKnight back to the hospital. Upon his return to the

hospital, he was told that his injury was life-threatening and that he needed immediate

surgery.

       Mr. McKnight claims his rights under the Eighth Amendment2 were violated in

two distinct ways. First, he claims he received inadequate medical treatment. Second, he

claims prison officials failed to protect him from assault by the other inmate. We review

a dismissal under section 1915(d) for an abuse of discretion. Denton v. Hernandez, 504

U.S. 25, 33 (1992). In so doing, we “consider, among other things, whether the plaintiff

was proceeding pro se, whether the court inappropriately resolved genuine issues of

disputed fact, whether the court applied erroneous legal conclusions, whether the court

has provided a statement explaining the dismissal that facilitates ‘intelligent appellate

review,’ and whether the dismissal was with or without prejudice.” Id. at 34 (quoting

Boag v. MacDougall, 454 U.S. 364, 365 n. (1982) (per curiam)) (citations omitted).


       2
         These rights were “made applicable to the States by the Fourteenth [Amendment].”
Estelle v. Gamble, 429 U.S. 97, 101 (1976).

                                             -4-
       Mr. McKnight failed to establish that his medical treatment violated his

constitutional rights. As the Supreme Court has explained,

       a complaint that a physician has been negligent in diagnosing or treating a
       medical condition does not state a valid claim of medical mistreatment
       under the Eighth Amendment. Medical malpractice does not become a
       constitutional violation merely because the victim is a prisoner. In order to
       state a cognizable claim, a prisoner must allege acts or omissions
       sufficiently harmful to evidence deliberate indifference to serious medical
       needs.

Estelle v. Gamble, 429 U.S. 97, 106 (1976). Mr. McKnight was promptly brought to the

hospital, where he was examined. The next morning, upon further examination, he was

again brought to the hospital and treated. By his own version of these events, there is no

sign of deliberate indifference. The district court properly held that Mr. McKnight’s

allegations established no more than simple negligence, if that.

       Similarly, Mr. McKnight’s claim that he was not protected from the other inmate

fails. While “‘prison officials have a duty . . . to protect prisoners from violence at the

hands of other prisoners,’” Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994) (quoting

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488

U.S. 823 (1988)), the Supreme Court has “held that a prison official violates the Eighth

Amendment only when two requirements are met,” id. at 1977. First, “the inmate must

show that he is incarcerated under conditions posing a substantial risk of serious harm.”

Id. Second, a prison official must be deliberately indifferent to inmate safety. Id. This

means “a prison official cannot be found liable under the Eighth Amendment for denying

an inmate humane conditions of confinement unless the official knows of and disregards



                                              -5-
an excessive risk to inmate health or safety; the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Id. at 1979.

       Mr. McKnight simply cannot meet these burdens. His pleadings do not suggest he

faced any substantial risk. It is not enough for Mr. McKnight to point out that he is black

and Muslim, or that his attacker was racist. The inmate who stabbed him was isolated in

a cell, suggesting both that he posed little risk and that officials could not have effectively

done more to minimize any potential danger. Moreover, Mr. McKnight does not suggest

that officials knew of and disregarded any severe dangers. Another inmate found a cruel

and devious way to attack Mr. McKnight, but prison officials cannot be said to have been

deliberately indifferent. Although “[b]eing violently assaulted in prison is simply not

‘part of the penalty that criminal offenders pay for their offenses against society,’” id. at

1977 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)), regrettably such assaults

are not always preventable. The allegations set out in his pleadings do not supply a basis

on which a court could grant legal relief.3 The court did not abuse its discretion in

dismissing his complaint.

       Relying on Denton, Mr. McKnight argues he should have been granted leave to

amend. See 504 U.S. at 34. However, we are not persuaded “it appears that frivolous

factual allegations could be remedied through more specific pleading.” Id. Rather, Mr.

McKnight set out “claims of a legal interest which clearly does not exist.” Neitzke v.


      Similarly, Mr. McKnight’s allegations do not state a claim under the Fifth or Fourteenth
       3

Amendments.

                                              -6-
Williams, 490 U.S. 318, 327 (1989). Mr. McKnight is correct when he complains that he

was treated differently because he was not a paying pro se litigant, but this is a deliberate

aspect of the legislative scheme that permits him to bring legal actions without cost. Had

he paid a filing fee, the court would have been bound to “permit [him] to amend [his]

complaint to overcome its deficiencies, as is [his] right under Fed. R. Civ. P. 15(a).”

Herrick v. Collins, 914 F.2d 228, 230 (11th Cir. 1990) (per curiam). This is “[b]ecause a

§ 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court’s

discretion under the in forma pauperis statute.” Denton, 504 U.S. at 34. Because Mr.

McKnight proceeded in forma pauperis, the court did not err in dismissing his complaint

sua sponte without giving him leave to amend.

       We AFFIRM the judgment of the district court.


                                           ENTERED FOR THE COURT


                                           Stephanie K. Seymour
                                           Chief Judge




                                             -7-
