Duran v. Zeller

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 96-40311 Summary Calendar _____________________

JOE ARAMBULA DURAN,

Plaintiff - Appellant,

versus

J. ZELLER; J. WILSON; E. BOATENG; K. WILLIAMS; G. CAMPUZANO, Lt.; L. MEDINA; RCEL, Dr.; B. HERRING; R. MOAK; M.K. APUSEN, Dr.; G. MARTINEZ,

Defendants - Appellees.

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Appeal from the United States District Court for the Southern District of Texas (C-94-410) ________________________________________________

June 20, 1996 Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:*

Joe Arambula Duran, proceeding pro se and in forma pauperis,

filed this 42 U.S.C. § 1983 action, in which he alleged numerous

violations of his rights by several officials of the Chase Field

Garza Unit of the Texas Department of Criminal Justice, where Duran

was incarcerated. The District Court dismissed the action pursuant

to 28 U.S.C. § 1915(d). Duran's appeal deals solely with his claim

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. that the defendants violated his rights under the Eighth and

Fourteenth Amendments by failing to provide him with a bland diet

after the doctor at the Garza Unit placed him on that diet to treat

his stomach symptoms.1

We review a § 1915(d) dismissal for abuse of discretion. It

is inappropriate if, inter alia, the plaintiff's allegations may

pass § 1915(d) muster with further factual development. Eason v.

Thaler, 14 F.3d 8, 9-10 (5th Cir 1994). Although the magistrate

judge ordered that Duran file a more definite statement regarding

some of his claims, the order did not question Duran about the

medical claim at issue here. To prevail on his Eighth Amendment

claim, Duran must demonstrate that the defendants were deliberately

indifferent to his serious medical needs constituting unnecessary

and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97,

104-06 (1976). A prison official acts with deliberate indifference

only if he knows that an inmate faces a substantial risk of serious

harm and disregards that risk by failing to take reasonable

measures to abate it. Farmer v. Brennan, __ U.S. __, 114 S. Ct.

1970, 1984 (1994).

1 Duran's claim, raised for the first time on appeal, that these actions also violated Equal Protection are reviewed only for plain error. Highland Insurance Co. v. National Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir. 1994) (applying plain error standard of review to assertions of error brought for first time on appeal in civil case), cert. denied, __ U.S.__, 115 S. Ct. 903 (1995). Among other things, Duran has not established the type of clear or obvious error necessary under this stringent standard.

- 2 - The district court did not address Duran's claim regarding his

diet. Accordingly, we VACATE the dismissal only as to this claim,

and REMAND it to the district court for further factual

development.2

VACATED IN PART and REMANDED

2 Duran's motion seeking to correct the description in his brief of his stomach condition is DENIED as unnecessary.

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