IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 05-51448 Fifth Circuit
Summary Calendar F I L E D
August 22, 2007
BILLY LANG Charles R. Fulbruge III
Clerk
Plaintiff - Appellant
v.
DOUGLAS DRETKE, Director - CID; SMITH, Warden; MASSINGELL,
Warden; O'REILLY, Warden; SLOAN, Major; BUNGER, Sergeant;
UNKNOWN A; UNKNOWN B; UNKNOWN C
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CV-214
Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
Billy Lang, Texas prisoner # 613800, proceeding pro se, filed a 42 U.S.C.
§ 1983 against Douglas Dretke, Director of the Texas Department of Criminal
Justice - Criminal Institutions Division (TDCJ-CID), and other corrections
officials and officers of the Alfred Hughes Unit. Lang alleged that the
defendants failed to abate a known risk of violence and failed to provide him
*
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should not be published and is not precedent except under the limited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. 05-51448
with adequate medical attention for injuries from an assault. The district court
dismissed the suit as frivolous pursuant to 28 U.S.C. § 1915(e), finding that
Lang had failed to exhaust his prison administrative remedies, as required by
42 U.S.C. § 1997e(a), with respect to inadequate-medical-treatment claim and
that Lang had failed to allege more than a de minimis injury, as required by
§ 1997e(e), for civil actions alleging mental or emotional injury.
A district court may dismiss a complaint as frivolous “‘where it lacks an
arguable basis either in law or in fact.’” Denton v. Hernandez, 504 U.S. 25, 31-33
(1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). Because the
district court dismissed as frivolous for failing to state a claim pursuant to
§ 1997e(e), this court should review the dismissal de novo. See Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005).
With respect to exhaustion, the district court’s determination that Lang
failed to exhaust his administrative remedies was premature because exhaustion
is an affirmative defense that must be raised by the defendant. See Jones v.
Bock, 127 S. Ct. 910, 921 (2007). With respect to the failure-to-protect claim,
Lang’s pleadings were sufficient to allege conditions of incarceration that posed
a substantial risk of serious harm to which prison officials were deliberately
indifferent. See Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). The district
court’s judgment is VACATED and the case is REMANDED to the district court
for further proceedings.
We do not consider Lang’s assertion that it is wrong for prison officials to
collect filing fees from his prisoner account because it was not raised below. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
2