IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50819
Summary Calendar
LARRY DON TILLIS,
Plaintiff-Appellant,
versus
TERRY FOSTER, WARDEN; JOY STOUT, LVN;
W.A. HOWELL; DAYLE LANCASTER; RICHARD
BARKLEY; STEVEN JEFFCOAT; LOUIS WARFIELD;
RONALD JORDAN; STEPHEN CAPERS,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Texas
(P-95-CV-57)
July 26, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Larry Don Tillis (Tillis), a Texas
prisoner proceeding pro se and in forma pauperis, appeals the
dismissal under 28 U.S.C. § 1915(d) of his 42 U.S.C. § 1983 suit
against various Texas Department of Criminal Justice personnel.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
The dismissal of the complaint insofar as it complained of a
lack of proper medical care was clearly proper for the reasons
given by the magistrate judge and the district court. The detailed
allegations of the complaint negate the requisite deliberate
indifference and have no tendency to show more than at most mere
negligent, mistaken, and/or unsuccessful treatment or diagnosis.
Graves v. Hampton, 1 F.3d 315, 319-20 (5th Cir. 1993); Varnado v.
Lynaugh, 920 F.2d 278, 284 (5th Cir. 1990). Similarly, the claim
that Tillis’ sentence did not allow for hard labor was properly
dismissed as frivolous. See Wendt v. Lynaugh, 841 F.2d 619, 620
(5th Cir. 1988).
However, neither the magistrate judge nor the district court
addressed Tillis’ claim again defendants Jordan, Capers, Barkley,
and Jeffcoat relating to their forcing him to work, or disciplining
him for not doing so, notwithstanding his back injury, which was
aggravated thereby. These allegations arguably implicate a
possible claim under the theory of Jackson v. Cain, 864 F.2d 1235
(5th Cir. 1989). Moreover, while a Jackson v. Cain-type claim may
not be fully pleaded in these portions of Tillis’ complaint, see
Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994),1 nothing in the
complaint is inconsistent with, or suggests that Tillis could not
properly plead, such a claim, and Tillis was not sent a
questionnaire, did not have a hearing under Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985), and was not afforded an opportunity to
amend his complaint, which was dismissed with prejudice. Under all
1
See also Sandin v. Conner, 115 S.Ct. 2293, 2297-2300 (1995).
2
these circumstances, we conclude that the section 1915(d) dismissal
of these claims against Jordan, Capers, Barkley, and Jeffcoat was
premature. See Eason v. Thaler, 14 F.3d 8 at 9-10 (5th Cir. 1994).
Of course, further development of the allegations in this respect
may reflect that these claims, too, are properly dismissable under
section 1915(d). See id.
Accordingly, we affirm the dismissal of all claims except
those above referenced against Jordan, Capers, Barkley, and
Jeffcoat; as to the latter said claims, the dismissal is vacated
and the cause is remanded for further proceedings not inconsistent
herewith.
AFFIRMED in part; VACATED and REMANDED in part.
3