Brian Maurice Fuller, Plaintiff-appellant, v. Tom L. Wooten, Warden, Federal Correctional Institution,florence, Co; Melvin Dunlap, Supervisor of Recreation,federal Correctional Institution, Florence, Co; Jerrysalazar, Recreation Specialist, Federal Correctionalinstitution, Florence, Co; Michelle A. Huerta, Recreationalspecialist, Federal Correctional Institution, Florence, Co,defendants-appellees, 66 F.3d 338 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Brian Maurice Fuller (Fuller), appearing pro se and having been granted leave to proceed in forma pauperis, appeals from a summary judgment order of the district court accepting a magistrate judge's recommendation that his civil rights complaint filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 399 (1971) be dismissed, and the dismissal of his case. Although Fuller is presently incarcerated at the Federal Corrections Institution, Three Rivers, Texas, he was, during all times relevant to this appeal, incarcerated at the Federal Correctional Institution, Florence, Colorado.

Fuller found a shank, a homemade knife, while working in the recreation department at Florence. On November 2, 1993, Fuller turned the shank over to Melvin Dunlap, supervisor of recreation at Florence. Fuller told Dunlap that his life would be in jeopardy if it became known that he had turned in the shank. Dunlap assured Fuller that he would not let anyone know about the incident.

On November 7, 1993, Michelle Huerta, a recreational specialist at Florence, thanked Fuller, in the presence of other inmates, for turning in the shank. On November 20, 1993, Jerry Salazar, another recreational specialist at Florence, discussed the fact that Fuller had turned in the shank within the hearing of other inmates.

On November 23, 1993, Fuller was attacked by two other inmates, and he suffered a puncture wound 3/4-inch deep when he was stabbed in the back with an ice pick. Fuller was treated, placed in protective custody for two months, and then transferred to a different institution.

Fuller subsequently filed a Bivens action against Tom Wooten, the warden at Florence, together with Dunlap, Huerta, and Salazar. Fuller alleged that Wooten's failure to properly train the Florence staff and the collective actions of Dunlap, Huerta and Salazar constituted deliberate indifference to their affirmative duty under the Eighth Amendment to the Constitution of the United States to protect his physical safety. Defendant-appellees moved to dismiss, arguing that Fuller had failed to state a claim upon which relief could be granted.

After " [i]nterpreting the facts in the record in the light most favorable to [Fuller]," and after finding that "there is no basis to grant relief to Mr. Fuller on his Eighth Amendment claims," the magistrate judge recommended that Fuller's complaint be dismissed. (R., Vol. I, Tab 49 at 7). Fuller objected to the recommendation of the magistrate judge, contending that there were genuine issues of material fact requiring trial of the case. The district court accepted and approved the recommendation and dismissed Fuller's complaint for the reasons set forth in the recommendation.

On appeal, Fuller contends that the district court erred in granting appellees summary judgment on his claim that appellees were deliberately indifferent to their affirmative duty under the Eighth Amendment to protect his physical safety and in denying his motion for discovery.

Deliberate indifference which will result in finding a violation of an inmate's Eighth Amendment rights occurs when an official's conduct disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights. Berry v. City of Muskogee, 900 F.2d 1489, 1496 (10th Cir. 1990). In his recommendation, the magistrate judge found that " [p]rior to the stabbing, the defendants knew only that Mr. Fuller had turned in a shank and, according to Mr. Fuller, that some other inmates may have been aware of this fact .... [however], these facts, without more, do not support Mr. Fuller's claim that the defendants should have known that he faced a serious risk of harm." (R., Vol. I, Tab 49 at 6).

We AFFIRM substantially for the reasons set forth in the Recommendation of the United States magistrate judge entered May 19, 1995.