                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 5, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-61062
                         Summary Calendar


                          TIMOTHY TURNER,

                                              Plaintiff-Appellant,

                              versus

      DONALD CABANA, Superintendent of Mississippi Department of
    Corrections, in his official and personal capacities; PAMELA
       ROBINSON, Associate Warden, in her official and personal
      capacities; HARRIS, Associate Warden, in his official and
  personal capacities; MICHAEL WEEKS, Lieutenant, in his official
and personal capacities; K.T. CHASE, Correctional Officer, in his
 official and personal capacities; TERRY STAPPLETON, Correctional
       Officer, in his official and personal capacities; EMMITT
     SPARKMAN, Deputy Commissioner, in his official and personal
capacities; CHRISTOPHER EPPS, Commissioner of Corrections, in his
  official and personal capacities; J.J. STREETER, Warden, in his
                   official and personal capacities,


                                             Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                       USDC No. 4:05-CV-97
                      --------------------

Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

     Timothy Turner, former Mississippi prisoner # 38850, appeals

the dismissal with prejudice of his 42 U.S.C. § 1983 suit, which

alleged that the defendants violated his constitutional rights by

     *
      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this opinion should not be published and is not precedent except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.
failing to protect him from an attack by another inmate, Lester

Nash. Nash attacked Turner while they were in separate pens in the

prison yard.

     Turner correctly argues that the district court erred in

failing to consider his timely filed objections to the magistrate

judge’s report. Moreover, because the objections were filed within

10 days of the final judgment, the objections should have been

construed by the district court as a FED. R. CIV. P. 59(e) motion.

See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994);

United States v. Gallardo, 915 F.2d 149, 150 n.2 (5th Cir. 1990).

Because     Turner’s    appeal     is        frivolous,   we    pretermit   the

jurisdictional issue presented by the failure of the district court

to   rule   on    the   Rule     59(e)       motion.      See   Fed.   R.   App.

P. 4(a)(4)(A)(iv); Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir.

1994); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).

     As found by the district court, the facts alleged by Turner

did not establish that any of the defendants had knowledge that

there was a specific risk of Nash attacking Turner during yard call

while they were in separate pens.             See Farmer v. Brennan, 511 U.S.

825, 833, 837 (1994); Jacquez v. Procunier, 801 F.2d 789, 792 (5th

Cir. 1986).      In fact, Turner conceded during the Spears** hearing,

that he himself did not anticipate the attack and that he knew of

no way that the defendants could have anticipated the attack.


     **
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                         2
Although he stated in his objections to the magistrate judge’s

report that the defendants should have anticipated the attack

because he and Nash were in rival gangs, he did not explain how

such knowledge would have led the defendants to infer that there

was a substantial risk of harm to Turner by Nash while they were in

separate pens in the prison yard.            See Farmer, 511 U.S. at 837.

Neither did Turner allege any facts that would establish that the

defendants knew or should have known that their failure to search

Nash on the day in question would pose a substantial risk of harm

to Turner while he and Nash were in separate pens.                Id.   The mere

failure to follow prison regulations and rules does not rise to the

level of a constitutional violation.               See Hernandez v. Estelle,

788 F.2d 1154, 1158 (5th Cir. 1986).

     Turner’s appeal is frivolous and is dismissed.               See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.                 Because

Turner was incarcerated at the time he filed the instant appeal,

the dismissal of this appeal as frivolous counts as a strike for

purposes of 28 U.S.C. § 1915(g).      See Adepegba v. Hammons, 103 F.3d

383, 388 (5th Cir. 1996).     Should Turner be returned to prison and

accumulate three strikes, he would not be permitted to proceed in

forma   pauperis   in   any   civil       action    or   appeal    filed    while

incarcerated or detained in any facility unless he were under

imminent danger of serious physical injury. See § 1915(g).                 Turner

is also warned that, as a non-prisoner, any future frivolous

filings will subject him to sanctions.

                                      3
APPEAL DISMISSED; SANCTION WARNING ISSUED.




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