United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 8, 2003
Charles R. Fulbruge III
Clerk
No. 03-20302
Summary Calendar
GARLAND MICHAEL GREEN,
Plaintiff-Appellant,
versus
JOHN DOE,
Defendant-Appellee.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-2678
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Before DAVIS, EMILIO M. GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Garland Michael Green, Texas state prisoner # 1037843,
appeals the district court’s dismissal as frivolous of his
42 U.S.C. § 1983 complaint. Green argues that Officer Doe acted
with deliberate indifference to his safety and well being by
ordering him to lift a mattress after Green told him that he
was medically restricted from doing so. Although the officer’s
alleged responses to Green indicate that he did not know whether
there were any medical restrictions precluding Green from raising
*
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that this opinion should not be published and is not precedent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. 03-20302
-2-
the mattress, the officer’s failure to make any effort to
check the records despite Green’s protest may have amounted to
subjective recklessness that exposed Green to a substantial
risk of harm. Thus, Green’s allegations support an arguable
Eighth Amendment claim. See Jackson v. Cain, 864 F.2d 1235,
1246 (5th Cir. 1989); Norton v. Dimazana, 122 F.3d 286, 291
(5th Cir. 1997).
Green argues that the medical personnel at the Goree Unit
acted with deliberate indifference to his serious medical needs
by failing to provide him with medical treatment while he was
incarcerated at that unit. Green’s medical records at the Goree
Unit were not part of the record, and his allegations are not
sufficient to establish the nature of the medical treatment, if
any, that he received at that unit. Because the record was not
sufficiently developed for the district court to make a
determination whether the defendants acted with deliberate
indifference to Green’s serious medical needs while he was housed
at the Goree Unit, the district court prematurely dismissed this
claim as frivolous. Following remand of the case to the district
court, the district court should obtain Green’s medical records
or conduct a Spears** hearing to allow Green to develop this
claim. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Green also argues that he should not have been transferred
to the Price Daniel Unit because prison policy provided him with
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 03-20302
-3-
a protected liberty interest in being transferred to a unit where
his injury could be diagnosed and treated. The Due Process
Clause does not, by itself, endow a prisoner with a protected
liberty interest in the location of his confinement. Meachum
v. Fano, 427 U.S. 215, 225 (1976). Thus, he failed to show that
his transfer violated prison policy. The district court did not
err in dismissing the transfer claim as frivolous.
Green’s motion for an en banc hearing is DENIED. His motion
to supplement the record is also DENIED.
The judgment of the district court is AFFIRMED with respect
to Green’s claim that he was improperly transferred to the Price
Daniel Unit. The judgement is VACATED insofar as it dismissed as
frivolous Green’s claim against Officer Doe based on his ordering
Green to perform work beyond his physical capacity without
checking his medical record and in dismissing his claim that he
was denied medical care while incarcerated at the Goree Unit.
The case is REMANDED to the district court for further
consideration of the two viable claims.
AFFIRMED IN PART; VACATED IN PART AND REMANDED. MOTIONS
DENIED.