IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10268
Summary Calendar _____________________
DAVID WILLIAM THOMPSON,
Plaintiff-Appellant,
v.
DAVID WILLIAMS, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas (4:95-CV-066Y) _________________________________________________________________ (May 19, 1995) Before KING, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant David William Thompson appeals the
dismissal as frivolous of his civil rights complaint under 42
U.S.C. § 1983. We affirm in part and vacate and remand in part.
Proceeding pro se and in forma pauperis, Thompson, an inmate
serving a five-year sentence at the Tarrant County, Texas, jail,
filed a civil rights complaint against Tarrant County Sheriff
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. David Williams and John Peter Smith Hospital, the medical
facility contracted to meet the medical needs of the county jail.
Thompson alleged that he had gum disease and seven rotten teeth.
He had seen the dentist three times since he was incarcerated
five months earlier, and the dentist had given Thompson
antibiotics and mouthwash. The dentist told Thompson that he
needed to have his teeth pulled, but that the dentist was not
authorized to do that amount of work. Thompson alleged that
Sheriff Williams would not transfer him to the Texas Department
of Criminal Justice (TDCJ) so that Thompson could receive the
necessary dental work. For relief, Thompson requested transfer
to the medical floor, to be placed on the medical-transfer list
to TDCJ, or an order for the hospital to perform the necessary
dental work.
Although the magistrate judge granted Thompson IFP status,
the district court ordered Thompson to show cause why he should
not pay a partial filing fee and to explain how the named
defendants were liable. Thompson's IFP application indicated
that he had received from family $115 within the last five
months, although his prison account had a zero balance. The
court noted that Thompson's complaint failed to allege a
constitutional violation.
After Thompson filed his response to the district court's
order, the district court concluded that Thompson failed to
allege facts against the two named defendants and that,
regardless of who was named as defendant, Thompson's allegations
2 amounted to no more than negligence or medical malpractice.
Although the district court did not require Thompson to pay a
partial filing fee, the court found that Thompson was capable of
paying a $20 partial filing fee. The court ordered Thompson, if
Thompson filed another complaint in the Northern District of
Texas in the next six months, "to notify the judge presiding that
he has been required to pay a $20.00 partial filing fee in
subsequent suits." The court noted that the presiding judge will
then be required to determine whether such a fee would deny
Thompson access to the courts. The district court dismissed,
without prejudice, Thompson's complaint.
Dismissal as Frivolous
Although not expressly stated, the district court dismissed
Thompson's complaint as frivolous under 28 U.S.C. § 1915(d). See
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). An IFP
complaint may be dismissed as frivolous if it lacks an arguable
basis in law or fact. Denton v. Hernandez, 112 S. Ct. 1728, 1733
(1992). This court reviews for an abuse of discretion. Id. at
1734. Thompson argues that the failure of the medical staff to
treat his dental condition and the failure to arrange prompt
transfer to TDCJ, where he can receive the dental treatment,
amounts to cruel and unusual punishment.1
1 The district court held that Thompson failed to allege acts by the named defendants for which they would be liable. Because Thompson would be entitled to amend his complaint in order to name proper defendants if he had raised a constitutional claim in his pleadings, see Dayse v. Schuldt, 894 F.2d 170, 174 (5th Cir. 1990), the analysis proceeds under the assumption that Thompson has named proper defendants in his complaint.
3 A claim under 42 U.S.C. § 1983 requires the plaintiff to
prove the denial of a federal right by a person acting under
color of state law. See Daniel v. Ferguson, 839 F.2d 1124, 1128
(5th Cir. 1988). "[D]eliberate indifference to a prisoner's
serious illness or injury states a cause of action under § 1983."
Estelle v. Gamble, 429 U.S. 97, 105 (1976).
[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 114 S. Ct. 1970, 1979 (1994). "Under
exceptional circumstances, a prison official's knowledge of a
substantial risk of harm may be inferred by the obviousness of
the substantial risk." Reeves v. Collins, 27 F.3d 174, 176 (5th
Cir. 1994).
Although inartfully pleaded, Thompson alleged that the
dentist diagnosed the need for Thompson's teeth to be extracted,
dental surgery which the dentist was not authorized to perform.
Further, Thompson alleged that this required medical treatment is
not being provided, that he experiences a considerable amount of
suffering, and that the jail officials do not appear to be
arranging for the surgery or speeding up his transfer to a TDCJ
facility where Thompson can receive the needed medical work.2
2 We note that the response of the Tarrant County Sheriff's Department to Thompson's grievance was to advise Thompson to have his attorney move the state court to have Thompson's name placed on the medical-transfer list.
4 "Under certain circumstances, allegations of deliberate
indifference may be shown when prison officials deny an inmate
recommended treatment by medical professionals." Payne v.
Lynaugh, 843 F.2d 177, 178 (5th Cir. 1988); see Samuel v. Bowles,
No. 93-1072 at 5-8 (5th Cir. Oct. 22, 1993) (holding that
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10268
Summary Calendar _____________________
DAVID WILLIAM THOMPSON,
Plaintiff-Appellant,
v.
DAVID WILLIAMS, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas (4:95-CV-066Y) _________________________________________________________________ (May 19, 1995) Before KING, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant David William Thompson appeals the
dismissal as frivolous of his civil rights complaint under 42
U.S.C. § 1983. We affirm in part and vacate and remand in part.
Proceeding pro se and in forma pauperis, Thompson, an inmate
serving a five-year sentence at the Tarrant County, Texas, jail,
filed a civil rights complaint against Tarrant County Sheriff
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. David Williams and John Peter Smith Hospital, the medical
facility contracted to meet the medical needs of the county jail.
Thompson alleged that he had gum disease and seven rotten teeth.
He had seen the dentist three times since he was incarcerated
five months earlier, and the dentist had given Thompson
antibiotics and mouthwash. The dentist told Thompson that he
needed to have his teeth pulled, but that the dentist was not
authorized to do that amount of work. Thompson alleged that
Sheriff Williams would not transfer him to the Texas Department
of Criminal Justice (TDCJ) so that Thompson could receive the
necessary dental work. For relief, Thompson requested transfer
to the medical floor, to be placed on the medical-transfer list
to TDCJ, or an order for the hospital to perform the necessary
dental work.
Although the magistrate judge granted Thompson IFP status,
the district court ordered Thompson to show cause why he should
not pay a partial filing fee and to explain how the named
defendants were liable. Thompson's IFP application indicated
that he had received from family $115 within the last five
months, although his prison account had a zero balance. The
court noted that Thompson's complaint failed to allege a
constitutional violation.
After Thompson filed his response to the district court's
order, the district court concluded that Thompson failed to
allege facts against the two named defendants and that,
regardless of who was named as defendant, Thompson's allegations
2 amounted to no more than negligence or medical malpractice.
Although the district court did not require Thompson to pay a
partial filing fee, the court found that Thompson was capable of
paying a $20 partial filing fee. The court ordered Thompson, if
Thompson filed another complaint in the Northern District of
Texas in the next six months, "to notify the judge presiding that
he has been required to pay a $20.00 partial filing fee in
subsequent suits." The court noted that the presiding judge will
then be required to determine whether such a fee would deny
Thompson access to the courts. The district court dismissed,
without prejudice, Thompson's complaint.
Dismissal as Frivolous
Although not expressly stated, the district court dismissed
Thompson's complaint as frivolous under 28 U.S.C. § 1915(d). See
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). An IFP
complaint may be dismissed as frivolous if it lacks an arguable
basis in law or fact. Denton v. Hernandez, 112 S. Ct. 1728, 1733
(1992). This court reviews for an abuse of discretion. Id. at
1734. Thompson argues that the failure of the medical staff to
treat his dental condition and the failure to arrange prompt
transfer to TDCJ, where he can receive the dental treatment,
amounts to cruel and unusual punishment.1
1 The district court held that Thompson failed to allege acts by the named defendants for which they would be liable. Because Thompson would be entitled to amend his complaint in order to name proper defendants if he had raised a constitutional claim in his pleadings, see Dayse v. Schuldt, 894 F.2d 170, 174 (5th Cir. 1990), the analysis proceeds under the assumption that Thompson has named proper defendants in his complaint.
3 A claim under 42 U.S.C. § 1983 requires the plaintiff to
prove the denial of a federal right by a person acting under
color of state law. See Daniel v. Ferguson, 839 F.2d 1124, 1128
(5th Cir. 1988). "[D]eliberate indifference to a prisoner's
serious illness or injury states a cause of action under § 1983."
Estelle v. Gamble, 429 U.S. 97, 105 (1976).
[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 114 S. Ct. 1970, 1979 (1994). "Under
exceptional circumstances, a prison official's knowledge of a
substantial risk of harm may be inferred by the obviousness of
the substantial risk." Reeves v. Collins, 27 F.3d 174, 176 (5th
Cir. 1994).
Although inartfully pleaded, Thompson alleged that the
dentist diagnosed the need for Thompson's teeth to be extracted,
dental surgery which the dentist was not authorized to perform.
Further, Thompson alleged that this required medical treatment is
not being provided, that he experiences a considerable amount of
suffering, and that the jail officials do not appear to be
arranging for the surgery or speeding up his transfer to a TDCJ
facility where Thompson can receive the needed medical work.2
2 We note that the response of the Tarrant County Sheriff's Department to Thompson's grievance was to advise Thompson to have his attorney move the state court to have Thompson's name placed on the medical-transfer list.
4 "Under certain circumstances, allegations of deliberate
indifference may be shown when prison officials deny an inmate
recommended treatment by medical professionals." Payne v.
Lynaugh, 843 F.2d 177, 178 (5th Cir. 1988); see Samuel v. Bowles,
No. 93-1072 at 5-8 (5th Cir. Oct. 22, 1993) (holding that
pretrial detainee has stated a claim under § 1983 of intentional
interference with prescribed medical treatment) (unpublished).
"[T]he facts underlying a claim of `deliberate indifference' must
clearly evince the medical need in question and the alleged
official dereliction." Johnson v. Treen, 759 F.2d 1236, 1238
(5th Cir. 1985) (citation omitted).
Arguably, Thompson has stated a claim of denial of medical
care under the Eighth Amendment which, with further factual
development, "may pass section 1915(d) muster." Eason v. Thaler,
14 F.3d 8, 10 (5th Cir. 1994). Thompson alleged that he has
received dental treatment three times since his incarceration and
that the dentist has prescribed antibiotics and mouthwash.
Further factual development, through the use of a Spears3 hearing
or a questionnaire, may reveal that the treatment of antibiotics
and mouthwash will maintain Thompson's dental condition until the
transfer to a TDCJ facility or the scheduling of the needed
surgery while incarcerated in the county jail. See Mendoza v.
Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993) (district court using
inmate's medical records to conclude that inmate's claims of
delay of medical care and improper medical care were frivolous).
3 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
5 However, under the limited facts of the present record, the
district court abused its discretion in dismissing Thompson's
claim as frivolous. See Eason, 14 F.3d at 10. The district
court on remand should also allow Thompson to amend his complaint
to name the appropriate defendants. See Dayse, 894 F.2d at 174.
Thompson also argues that he is entitled to the dental
surgery under the Equal Protection Clause of the Fourteenth
Amendment because he is a U.S. citizen by birth. In his
response to the court's show-cause order, Thompson contended that
if he could be physically moved to John Peter Smith Hospital,
he would not be discriminated against and since he is a natualized [sic] born citizen he should have the same right to have proper medical attention while incarcerated because he can[no]t afford to hire an attorney to have him placed no [sic] the medical transfer list as recommened [sic] by grievance department.
It appears that Thompson is attempting to raise an equal
protection claim based on alleged discriminatory medical
treatment between incarcerated persons and indigent persons who
are not incarcerated. The district court did not address
expressly this claim. "The [E]qual [P]rotection [C]lause
mandates similar treatment of persons in similar situations."
Arceneaux v. Treen, 671 F.2d 128, 131 (5th Cir. 1982). The
groups implicitly identified by Thompson are not similarly
situated. Therefore, the equal protection claim is frivolous,
and its implicit dismissal by the district court is affirmed.
Court Order to Pay Partial Filing Fee in the Future
6 The district court imposed upon Thompson a requirement that
he pay a $20.00 partial filing fee in any suit he may file in the
Northern District of Texas in the next six months, from the date
of the court's order. Thompson explains to this court that he
had no money in his prison account when he filed his complaint,
and the $115 he had received in the past five months, had been
spent on commissary supplies. In light of Thompson's IFP status
in this suit and in light of liberal construction accorded pro se
writings, Thompson is contesting this prospective order of
partial payment.
The district court did not rely upon Fed. R. Civ. P. 11 in
its order nor is its decision based on frivolousness. Therefore,
the order is not a sanction. In the district court's show-cause
and dismissal orders, the court looked at Thompson's economic
situation. "The only determination to be made by the court" in
determining whether to grant leave to file an action IFP "is
whether the statements in the affidavit satisfy the requirements
of poverty." Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).
The district court failed to identify by what authority it
can impose its prospective IFP determination, with a six-month
shelf life, on Thompson before Thompson has attempted to file any
subsequent complaint. A review of the district court's local
rules does not disclose such authority. See N.D. Tex. R. 12.1
(fees), 12.7 (applications to proceed IFP). Although a district
court has discretion to determine, by examining an IFP
applicant's prison-account balance and considering regular
7 periodic deposits to that account, whether the IFP applicant
should pay a partial filing fee for the case at hand, see Smith
v. Martinez, 706 F.2d 572, 573-74 (5th Cir. 1983), we have found
no authority for making such a determination for prospective
application. Accordingly, the portion of the district court's
order requiring Thompson to pay a $20.00 partial filing fee in
any suit he may file in the Northern District of Texas in the
next six months is vacated.
AFFIRMED in part, VACATED and REMANDED in part as to the
alleged denial-of-medical-care claim and payment of partial
filing fee for future suits.