IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40136
Summary Calendar
JEFFREY BENSON DURHAM,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:96-CV-89
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August 7, 1997
Before WISDOM, DUHE’, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jeffrey Benson Durham, Texas prisoner # 670219, filed a
civil rights action under 42 U.S.C. § 1983 against various prison
officials. The district court dismissed Durham’s complaint as
frivolous under 28 U.S.C. § 1915. A § 1915 dismissal is reviewed
for abuse of discretion. Eason v. Thaler, 14 F.3d 8, 10 (5th
Cir. 1994).
Durham asserts that the defendants were deliberately
*
The court has determined that this opinion should not be
published and is not precedent except under the limited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. 97-40136
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indifferent to his serious medical needs and had retaliated
against him for filing grievances. See Farmer v. Brennan, 511 U.S. 825,
___, 114 S. Ct. 1970, 1980 (1994); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert.
denied, 116 S. Ct. 800 (1996).
With respect to Durham’s allegations that Dr. Browne changed
his medical classification based on x-rays alone without looking
at his ankle and became belligerent and falsified Durham’s
medical file following Durham’s filing of a grievance, the
district court abused its discretion in dismissing the claims of
deliberate indifference and retaliation as being without a basis
in fact or law. This dismissal of Dr. Browne is VACATED.
The district court did not abuse its discretion in
dismissing the remainder of the claims against the other medical,
security, and supervisory personnel. This portion of the
dismissal is AFFIRMED.
Durham’s motion for appointment of counsel on appeal is
DENIED. We do not consider whether exceptional circumstances
exist which may require the appointment of counsel as this case
proceeds to trial.
The case is hereby remanded to the district court for
additional proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION
DENIED.