IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10361
Summary Calendar
MOSES CALDWELL, III,
Plaintiff-Appellant,
versus
DALLAS COUNTY; JIM BOWLES; C.W. MCKINNEY;
MIKE ALCORN; NFN GRESHEM, Lieutenant;
NFN MCDANIEL, Sergeant; W. BRAGGS; V. COLE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-59-G
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October 23, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Moses Caldwell, # 97021087, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action for failure to protect him
from assault from another inmate as frivolous pursuant to 28 U.S.C.
§ 1915A(b)(1) and § 1915(e)(2)(B)(i).
Caldwell argues that the level and nature of the risk to which
the defendants exposed him was sufficient to "state a claim" under
the Eighth Amendment. He contends that the defendants were
adequately informed of the risk.
*
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that this opinion should not be published and is not precedent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. 98-10361
-2-
In his answers to the magistrate judge’s interrogatories,
Caldwell alleged that he had repeatedly warned the defendants that
he was going to be attacked, and he attached several exhibits of
correspondence to various prison official about his fear of
assault. Caldwell alleged in great detail that he “snitched” on
inmate Washington regarding Washington’s involvement in another
assault; that, shortly thereafter, he was placed in the same tank
with Washington; that Washington threatened him; and that Caldwell
repeatedly informed the defendants, verbally and in writing, that
he was fearful of an attack and wanted to be moved. In less than
three months, the feared attack occurred. The district court’s
dismissal of Caldwell’s failure-to-protect claim as frivolous was
an abuse of discretion. The facts alleged by Caldwell are
sufficient to survive a § 1915 dismissal. His claim is arguable in
fact and in law. He alleged facts which would show that the
defendants were aware that there was a substantial risk that
Washington would seriously harm Caldwell. See Horton v. Cockrell,
70 F.3d 397, 400-01 (5th Cir. 1995).
Caldwell contends that he still suffers from a continuing pain
located in and around his right ear and that he continues to suffer
from neck problems associated with his beating. He argues that the
district court erroneously applied a de minimis standard to his
injuries without a hearing and medical evidence. He argues that
the district court had no way of determining adequately the extent
of his injuries without a bona fide medical review.
The district court applied a de minimis injury standard,
citing 42 U.S.C. § 1997e(e) and Siglar v. Hightower, 112 F.3d 191,
No. 98-10361
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193 (5th Cir. 1997). The district court concluded that Caldwell’s
allegations of injuries such as blurred vision, headaches, and a
bruised throat, viewed objectively, did not indicate that he had
suffered severe pain over any period of time or that it resulted in
lasting disability. The district court incorrectly stated that
Caldwell had conceded that he did not need immediate medical
attention for his injuries. Caldwell alleged that he requested
medical attention but that his request was not answered.
Caldwell’s alleged injuries of blurred vision, headaches, and
a bruised throat, continuing through the time he filed his answers
to the questionnaire, are more than de minimis and are sufficient
to withstand a § 1915(e)(2)(B)(i) dismissal. See Horton, 70 F.3d
at 401.
Caldwell also alleged claims involving his placement in a
holdover cell for 28 hours under uncomfortable conditions pending
a transfer, and his placement in administrative segregation for six
days without having been found guilty of a disciplinary violation.
The district court found these claims to be frivolous. On appeal,
Caldwell repeats the facts regarding these claims, and he states as
one of his issues that the district court erred in applying Sandin
v. Conner, 515 U.S. 472 (1995) to his claim regarding his placement
in administrative segregation, but he does not brief these claims
in the body of his brief. These issues are considered abandoned.
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
The district court’s judgment is VACATED, and this case is
REMANDED for further proceedings.