UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40311
Summary Calendar
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JOE ARAMBULA DURAN,
Plaintiff - Appellant,
versus
J. ZELLER; J. WILSON; E. BOATENG; K. WILLIAMS; G. CAMPUZANO, Lt.;
L. MEDINA; RCEL, Dr.; B. HERRING; R. MOAK; M.K. APUSEN, Dr.; G.
MARTINEZ,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(C-94-410)
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June 20, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Joe Arambula Duran, proceeding pro se and in forma pauperis,
filed this 42 U.S.C. § 1983 action, in which he alleged numerous
violations of his rights by several officials of the Chase Field
Garza Unit of the Texas Department of Criminal Justice, where Duran
was incarcerated. The District Court dismissed the action pursuant
to 28 U.S.C. § 1915(d). Duran's appeal deals solely with his claim
*
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this opinion should not be published and is not precedent except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.
that the defendants violated his rights under the Eighth and
Fourteenth Amendments by failing to provide him with a bland diet
after the doctor at the Garza Unit placed him on that diet to treat
his stomach symptoms.1
We review a § 1915(d) dismissal for abuse of discretion. It
is inappropriate if, inter alia, the plaintiff's allegations may
pass § 1915(d) muster with further factual development. Eason v.
Thaler, 14 F.3d 8, 9-10 (5th Cir 1994). Although the magistrate
judge ordered that Duran file a more definite statement regarding
some of his claims, the order did not question Duran about the
medical claim at issue here. To prevail on his Eighth Amendment
claim, Duran must demonstrate that the defendants were deliberately
indifferent to his serious medical needs constituting unnecessary
and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97,
104-06 (1976). A prison official acts with deliberate indifference
only if he knows that an inmate faces a substantial risk of serious
harm and disregards that risk by failing to take reasonable
measures to abate it. Farmer v. Brennan, __ U.S. __, 114 S. Ct.
1970, 1984 (1994).
1
Duran's claim, raised for the first time on appeal, that these
actions also violated Equal Protection are reviewed only for plain
error. Highland Insurance Co. v. National Fire Ins. Co., 27 F.3d
1027, 1031-32 (5th Cir. 1994) (applying plain error standard of
review to assertions of error brought for first time on appeal in
civil case), cert. denied, __ U.S.__, 115 S. Ct. 903 (1995). Among
other things, Duran has not established the type of clear or
obvious error necessary under this stringent standard.
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The district court did not address Duran's claim regarding his
diet. Accordingly, we VACATE the dismissal only as to this claim,
and REMAND it to the district court for further factual
development.2
VACATED IN PART and REMANDED
2
Duran's motion seeking to correct the description in his brief
of his stomach condition is DENIED as unnecessary.
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