Caldwell v. Dallas County

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-10361
Summary Calendar

MOSES CALDWELL, III,

Plaintiff-Appellant,

versus

DALLAS COUNTY; JIM BOWLES; C.W. MCKINNEY;
MIKE ALCORN; NFN GRESHEM, Lieutenant;
NFN MCDANIEL, Sergeant; W. BRAGGS; V. COLE,

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-59-G
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October 23, 1998

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Moses Caldwell, # 97021087, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 action for failure to protect him

from assault from another inmate as frivolous pursuant to 28 U.S.C.

§ 1915A(b)(1) and § 1915(e)(2)(B)(i).

Caldwell argues that the level and nature of the risk to which

the defendants exposed him was sufficient to "state a claim" under

the Eighth Amendment. He contends that the defendants were

adequately informed of the risk.

*
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that this opinion should not be published and is not precedent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.
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In his answers to the magistrate judge’s interrogatories,

Caldwell alleged that he had repeatedly warned the defendants that

he was going to be attacked, and he attached several exhibits of

correspondence to various prison official about his fear of

assault. Caldwell alleged in great detail that he “snitched” on

inmate Washington regarding Washington’s involvement in another

assault; that, shortly thereafter, he was placed in the same tank

with Washington; that Washington threatened him; and that Caldwell

repeatedly informed the defendants, verbally and in writing, that

he was fearful of an attack and wanted to be moved. In less than

three months, the feared attack occurred. The district court’s

dismissal of Caldwell’s failure-to-protect claim as frivolous was

an abuse of discretion. The facts alleged by Caldwell are

sufficient to survive a § 1915 dismissal. His claim is arguable in

fact and in law. He alleged facts which would show that the

defendants were aware that there was a substantial risk that

Washington would seriously harm Caldwell. See Horton v. Cockrell,

70 F.3d 397, 400-01 (5th Cir. 1995).

Caldwell contends that he still suffers from a continuing pain

located in and around his right ear and that he continues to suffer

from neck problems associated with his beating. He argues that the

district court erroneously applied a de minimis standard to his

injuries without a hearing and medical evidence. He argues that

the district court had no way of determining adequately the extent

of his injuries without a bona fide medical review.

The district court applied a de minimis injury standard,

citing 42 U.S.C. § 1997e(e) and Siglar v. Hightower, 112 F.3d 191,
 No. 98-10361
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193 (5th Cir. 1997). The district court concluded that Caldwell’s

allegations of injuries such as blurred vision, headaches, and a

bruised throat, viewed objectively, did not indicate that he had

suffered severe pain over any period of time or that it resulted in

lasting disability. The district court incorrectly stated that

Caldwell had conceded that he did not need immediate medical

attention for his injuries. Caldwell alleged that he requested

medical attention but that his request was not answered.

Caldwell’s alleged injuries of blurred vision, headaches, and

a bruised throat, continuing through the time he filed his answers

to the questionnaire, are more than de minimis and are sufficient

to withstand a § 1915(e)(2)(B)(i) dismissal. See Horton, 70 F.3d

at 401.

Caldwell also alleged claims involving his placement in a

holdover cell for 28 hours under uncomfortable conditions pending

a transfer, and his placement in administrative segregation for six

days without having been found guilty of a disciplinary violation.

The district court found these claims to be frivolous. On appeal,

Caldwell repeats the facts regarding these claims, and he states as

one of his issues that the district court erred in applying Sandin

v. Conner, 515 U.S. 472 (1995) to his claim regarding his placement

in administrative segregation, but he does not brief these claims

in the body of his brief. These issues are considered abandoned.

See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

The district court’s judgment is VACATED, and this case is

REMANDED for further proceedings.