                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 98-41373
                           Summary Calendar



MICHAEL SCOTT,

                                             Plaintiff-Appellant,

versus

STACY D. LAYTON, Coffield Unit,

                                             Defendant-Appellee.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:97-CV-332
                        - - - - - - - - - -

                             June 25, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Michael Scott, Texas state prisoner # 683064, appeals from

the dismissal of his civil rights complaint as frivolous.      Scott

argues that his consent to proceed before the magistrate judge

for all purposes including final judgment was involuntary because

the district court failed to follow 28 U.S.C. § 636(c)(2) in

obtaining his consent, which required that the clerk of court at

the time the action was filed notify the parties of the

availability of a magistrate judge to exercise jurisdiction over


     *
        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that this opinion should not be published and is not precedent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. 98-41373
                                  -2-



the case.   Scott also argues that the magistrate judge abused her

discretion in denying his motion to alter or amend judgment.

     The magistrate judge should have construed Scott’s post-

judgment motion as a Fed. R. Civ. P. 59(e) motion to alter or

amend judgment because the motion was filed within ten days,

excluding weekends, of final judgment.      See Harcon Barge Co. v. D

& G Boat Rentals, Inc., 784 F.2d 665, 667-69 (5th Cir. 1986) (en

banc); Fed. R. Civ. P. 6(a); Fed. R. Civ. P. 59(e).

     The record demonstrates that Scott voluntarily consented to

proceed before the magistrate judge.    This court thus has

jurisdiction over the final judgment.       See Mendes Junior Intern.

Co. v. M/V SOKAI MARU, 978 F.2d 920, 922 (5th Cir. 1992).

     The magistrate judge did not abuse her discretion in denying

Scott’s Rule 59(e) motion.    See Midland West Corp. v. FDIC, 911

F.2d 1141, 1145 (5th Cir. 1990).    Scott’s failure-to-protect

claim is one of mere negligence.    Neals v. Norwood, 59 F.3d 530,

533 (5th Cir. 1995).

     AFFIRMED.
