                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 18 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 MARCUS A. CARTER,
             Plaintiff-Appellant,                       No. 02-2196
 v.                                           (D.C. No. CIV-00-874-MV/DJS)
 FLORA PADILLA, Segregation                          (D. New Mexico)
 Sergeant, Central New Mexico
 Correctional Facility, and JOHN/JANE
 DOES, 1-12, all in their individual
 capacities,
             Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



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

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This is a pro se state prisoner 42 U.S.C. § 1983 civil rights appeal. Mr.



      *
       This order and judgment is not binding precedent, except under the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 of 10th Cir. R. 36.3.
Carter claims that his Eighth Amendment right to be free from cruel and unusual

punishment was violated because Appellees were deliberately indifferent in

failing to protect him from attack by other inmates at the Central New Mexico

Correctional Facility. Prior to his transfer to CNMCF, Appellant had been

assaulted by inmates at the Guadalupe County Correctional Facility. Appellant

states that he had been in the Aryan Brotherhood but was beaten by the gang

when they discovered that he was in prison for sexual offenses. The magistrate

judge recommended that Mr. Carter’s motion to amend the complaint be denied

and summary judgment be granted. After reviewing Mr. Carter’s timely written

objections, the district court adopted the magistrate judge’s recommended

disposition and dismissed the action with prejudice. Mr. Carter appeals to this

court. 1

       We agree that Appellant has not demonstrated that Appellees exhibited

deliberate indifference to his safety as required by the Eighth Amendment.

       A prison official’s failure to prevent harm “violates the Eighth Amendment
       only when two requirements are met.” Farmer v. Brennan, 511 U.S. 825,
       834, 114 S.Ct. 1970, 128 L.Ed.2d. 811 (1994). First, the prison official’s
       act or omission must be “objectively, sufficiently serious” and “result in the
       denial of the minimal civilized measure of life’s necessities. . . . [T]he
       inmate must show that he is incarcerated under conditions posing a


       1
         We have jurisdiction because Appellant’s notice of appeal is dated within
the thirty days to file an appeal. See Fed. R. App. P. 4(c) (a pro se prisoner’s
notice of appeal is deemed filed when it is delivered to prison officials for
forwarding to the district court); see also Houston v. Lack, 487 U.S. 266 (1988).

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      substantial risk of serious harm.” Id. (quotation marks and citations
      omitted). Second, the “prison official must have a sufficiently culpable
      state of mind,” in this case “deliberate indifference to inmate health or
      safety.” Id. (quotation marks omitted). Deliberate indifference requires
      actual knowledge of the risk to inmate safety. See id. at 837, 114 S.Ct.
      1970.

Curley v. Perry, 246 F.3d 1278, 1282 (10th Cir.), cert. denied, 122 S. Ct. 274

(2001).

      Appellant has been in administrative segregation at his own request during

his entire stay at CNMCF. By placing Appellant in administrative segregation,

prison officials demonstrated some concern for his safety. Id. Additionally,

Appellant’s attacker was in restraints and was being escorted by a correctional

officer at the time of the assault. “Even if it is negligent of [the prison officials]

not to take further protective actions, it cannot be said that they have shown

deliberate indifference.” Id.

      After a thorough review of the briefs and the record, and for substantially

the same reasons set forth in the magistrate judge’s disposition adopted by the

district court in its June 25, 2002, Order, we hold that no relief is available to Mr.

Carter pursuant to § 1983.

      The decision of the trial court is AFFIRMED. Appellant’s motion for

leave to proceed without prepayment of the appellate filing fee is GRANTED.




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Appellant must continue making partial payments on court fees and costs

previously assessed until such have been paid in full.


                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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