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

                                                FILED
                                                                   March 11, 2009
                                 No. 08-10262
                               Summary Calendar                 Charles R. Fulbruge III
                                                                        Clerk

SCOTT E MOORMAN
                                             Plaintiff-Appellant

v.

JOHN C JOWERS; NUNN; GREGORY A HARRISON; THERESA HENDRICK;
CARLOS VERA; MARY MILLER; DORA SHIPP; KATHY SKINNER; JOE A
GRIMES; GAUDALUPE JURADO; JIMMY BAGBY; DALE R DEDRICK;
LESLIE K WELLS; WILLIAM GING; DAVID PRICE; DALE G FAIRCHILD;
BRIAN J CLARK; ALAN WILSON; ELIZABETH BURNS

                                             Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 2:07-CV-140


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Scott E. Moorman, Texas prisoner # 327969, appeals the district court’s
dismissal as frivolous and for failure to state a claim of his 42 U.S.C. § 1983 civil
rights complaint. Moorman asserted that defendants failed to protect him from
an assault by another prisoner, retaliated against him for his attempts to access



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10262

the court system and file grievances, and conspired to violate his due process
rights. Moorman sought compensatory damages, punitive damages, injunctive
relief, and a declaratory judgment.
      We review the dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B)(i)
as frivolous for abuse of discretion, Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005), and we review the dismissal of a complaint under 28 U.S.C.
§ 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 F ED. R. C IV. P. 12(b)(6).
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999); see also In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (de novo review of
dismissal for failure to state a claim using revised Rule 12(b)(6) standard).
Because the district court referred to both sections of the statute when it
dismissed Moorman’s complaint, review is de novo. See Geiger, 404 F.3d at 373.
      Moorman argues that the district court erred in dismissing his complaint.
Moorman asserts that he sufficiently alleged that prison officials repeatedly
denied his requests for protection, and that he was attacked by another inmate
as a result of the defendants’ deliberate indifference to his safety. Moorman
specifically contends that the district court wrongly dismissed his claims against
Mary Miller, Kathy Skinner, John Jowers, William Ging, Alan Wilson, Elizabeth
Burns, Warden Nunn, Jimmy Bagby, Guadalupe Jurado, and Dora Shipp. To
the extent that Moorman raised claims in his complaint against other
defendants, he has abandoned those claims by failing to raise them on appeal.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (even pro se litigants
must brief arguments in order to preserve them).
      To establish his failure-to-protect claim, Moorman 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, 837 (1994)). Moorman has failed to show that the defendants had

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the requisite knowledge that a substantial risk of serious harm existed prior to
the incident at issue in his complaint. Moreover, to the extent that he argues
that the defendants were deliberately indifferent to his safety after this incident,
he has not alleged that he suffered any subsequent injury giving rise to a failure-
to-protect claim. See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999).
      Moorman also reasserts his claims that he was retaliated against for his
general use of the court system and filing of unspecified grievances, and that the
defendants conspired to violate his due process rights. However, Moorman
merely recites his vague and conclusory allegations of retaliation and conspiracy
and fails to identify any error in the district court’s analysis of these claims.
Accordingly, Moorman has not demonstrated that the district court erred in
holding that these claims did not allege grounds upon which relief could be
granted. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). Moorman’s remaining claims against the defendants do not
give rise to § 1983 causes of action because they do not implicate constitutional
matters or allege violations of internal prison regulations. See Cornish v. Corr.
Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005); Hernandez v. Estelle, 788 F.2d
1154, 1158 (5th Cir. 1986).
      Moorman additionally argues that the district court improperly dismissed
his complaint without first issuing a questionnaire or ordering a Spears hearing.
Moorman asserts that the court therefore failed to properly develop the factual
basis of his allegations and prematurely concluded that his claims lacked merit.
However, given that Moorman’s claims are based upon legally inarguable
positions, his complaint may be properly dismissed without a hearing or a
questionnaire. See 28 U.S.C. § 1915(e)(2); cf. Eason v, Thaler, 14 F.3d 8, 9-10
(5th Cir. 1994). Moreover, the record demonstrates that Moorman was afforded
the opportunity to “plead his best case.” See Jacquez v. Procunier, 801 F.2d 789,
793 (5th Cir. 1986).



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      This court’s affirmance of the district court’s dismissal of Moorman’s
§ 1983 complaint as frivolous or for failure to state a claim counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Moorman is warned that if he accumulates two more strikes,
he will no longer be allowed to proceed in forma pauperis in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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