IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 98-50445
Summary Calendar
RHONDA FLEMING,
Plaintiff-Appellant,
versus
RATLIFF, Officer, ET AL.,
Defendants-Appellees.
---------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CV-405
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October 13, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Rhonda Fleming, Texas prisoner #598829, seeks to proceed in
forma pauperis (IFP) in the appeal of the dismissal of her civil
rights complaint for failure to state a claim under § 28 U.S.C.
1915(e)(2)(b)(ii). By moving for IFP, Fleming is challenging the
district court’s certification that IFP status should not be
granted on appeal because her appeal is not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Fleming’s complaint alleged that her hands were twisted so
forcefully that she continued to suffer from pain in her wrists
*
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that this opinion should not be published and is not precedent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. 98-50445
- 2 -
over 7½ months after the incident. Her allegations, if true,
raise a valid excessive-force claim under the Eighth Amendment.
Thus, the district court erred in dismissing Fleming’s complaint
for failure to state a claim under § 28 U.S.C. 1915(e)(2)(b)(ii),
on the ground that her physical injuries were de minimis.
“[I]n reversing the trial court in cases where the merits
are so intertwined with the certification decision as to
constitute the same issue, the prior expedient practice of
determining the merits of the appeal as well as the
appropriateness of IFP status will remain an available appellate
disposition.” Baugh, 117 F.3d at 202. Accordingly, Fleming’s
motion for IFP is GRANTED, the district court’s judgment is
VACATED, the district court’s certification decision is VACATED,
and the case is REMANDED to the district court for further
proceedings, including in the court’s discretion, a Spears**
hearing or other appropriate factual development.
IFP GRANTED. JUDGMENT VACATED. CERTIFICATION VACATED. CASE
REMANDED.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).