Chambers v. Jeter , 247 F. App'x 490 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-10648
Summary Calendar
RICHARD CHAMBERS
Plaintiff-Appellant,
versus
WARDEN COLE JETER, FCI - Fort Worth; CAPTAIN LES PHILLIPS, FCI -
Fort Worth; LIEUTENANT MUNOZ, Special Agent Internal Affairs at
FCI - Ft. Worth; LIEUTENANT M. HOPKINS, Special Agent
Investigative Services at FCI - Ft. Worth; OFFICER ROTHMAN, FCI -
Fort Worth; MEDICAL DOCTOR HERNAN REYES, Clinical Director at FCI
- Fort Worth; PAUL CELESTIN, Health Service Administrator at FCI
- Fort Worth; DR. S.K. KWATRA, Medical Officer at FCI - Ft.
Worth; FEDERAL BUREAU OF PRISONS
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(4:06-CV-304)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Richard Chambers, federal prisoner # 32862-177, appeals, pro
se, the 28 U.S.C. §§ 1915(e)(2)(B) and 1915A dismissal, for failure
to state a non-frivolous claim, of his civil rights action against
Bureau of Prisons (BOP) employees.
*
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this opinion should not be published and is not precedent except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.
A dismissal as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) is reviewed for abuse of discretion, e.g., Ruiz v.
United States, 160 F.3d 273, 275 (5th Cir. 1998); dismissals
pursuant to § 1915(e)(2)(B)(ii) (failure to state a claim) and §
1915A, de novo. E.g., id. Because the district court’s dismissal
referred to both § 1915(e)(2)(B) and § 1915A, de novo review
applies. See Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005).
Regarding the failure-to-state-a-claim dismissal of the claims
purportedly brought under 18 U.S.C. §§ 2, 241, and 1001, and Texas
Penal Code §§ 39.022 and 39.04, Chambers contends the district
court erroneously failed to liberally construe his pleadings or
require a more definite statement, pursuant to Federal Rule of
Civil Procedure 15(a). Despite Chambers’ pro se status, dismissal
of these claims, which asserted criminal charges, was proper. See
United States v. Carter, 953 F.2d 1449, 1462 (5th Cir. 1992).
Similarly, the district court properly dismissed as frivolous
Chambers’ count-one deliberate-indifference claim regarding Dr.
Kwatra’s alleged inadequate pain treatment, because Dr. Kwatra’s
response to Chambers’ request for different pain medication does
not constitute deliberate indifference. See Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991).
Dismissal as frivolous was also proper for Chambers’ count-one
claims regarding Jeter’s and Dr. Kwatra’s alleged intentional
infliction of emotional distress, see City of Midland v. O’Bryant,
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18 S.W.3d 209, 216-17 (Tex. 2000), and Chambers’ count-two claims
relying on United States ex rel. Accardi v. Shaughnessy, 347 U.S.
260 (1954), which alleged violations of BOP program statements.
See Royal v. Tombone, 141 F.3d 596, 600-01 (5th Cir. 1998); Miller
v. Henman, 804 F.2d 421, 426 (7th Cir. 1986); cf. Black v. Warren,
134 F.3d 732, 734 (5th Cir. 1998).
For his other count-one deliberate-indifference claims,
Chambers’ complaint alleged: defendants delayed and denied medical
care to him, including arm surgery; despite his advising Officer
Rothman of medical restrictions related to his heart condition and
high blood pressure, Officer Rothman forced him to work in
violation of them; as a result, his blood pressure rose to a
dangerous level, he experienced light-headedness, fatigue, and
chest pain, he had an abnormal EKG, and he was hospitalized for
over a week; and Officer Rothman’s actions constituted intentional
infliction of emotional distress. Along that line, Chambers’
count-three claims alleged, inter alia, policies and customs of
punishing inmates with manual labor and retaliating against
grievance-filing inmates, and his count-eight claims under the
Federal Tort Claims Act related to the alleged incident with
Officer Rothman and retaliation for Chambers’ filing a related
grievance. These claims are not based on an “indisputably
meritless legal theory”. Davis v. Scott, 157 F.3d 1003, 1005 (5th
Cir. 1998) (internal quotation marks omitted); see also Jackson v.
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Cain, 864 F.2d 1235, 1246 (5th Cir. 1989). Moreover, the district
court, which did not give reasons in dismissing these claims as
frivolous, did not allow Chambers the opportunity to develop them.
Accordingly, such dismissal was improper. See Davis, 157 F.3d at
1005; Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994); Moore v.
Mabus, 976 F.2d 268, 271 (5th Cir. 1992).
Concomitantly, because exhaustion is an affirmative defense
that must be raised by the defendant, the district court’s failure-
to-exhaust conclusion was premature. See Jones v. Bock, 127 S. Ct.
910, 921 (2007).
In sum, the failure-to-state-a-claim dismissal, and the
dismissal as frivolous of Chambers’ Accardi-based claims, his
deliberate-indifference claim regarding Dr. Kwatra’s alleged
inadequate pain treatment, and his intentional-infliction-of-
emotional-distress claims as to Dr. Kwatra and Jeter, are affirmed.
The dismissal as frivolous of the remaining claims is vacated, and
this matter is remanded for further proceedings consistent with
this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
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