*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10248

Summary Calendar

_____________________

MICHAEL CARVER FLOWERS,

Plaintiff-Appellant,

v.

JIM BOWLES, Sheriff, and MEDICAL DIRECTOR,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Texas

 

(July 25, 1995)

Before KING, JOLLY, and PARKER, Circuit Judges.

PER CURIAM:*

Michael Carver Flowers brought suit under 42 U.S.C. § 1983,

claiming that he was unconstitutionally denied medical care while

incarcerated. Flowers' claim was dismissed with prejudice

pursuant to 28 U.S.C. § 1915(d), and Flowers now appeals. We

affirm in part and reverse and remand in part.
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I. BACKGROUND

Flowers, a Texas Department of Criminal Justice prisoner,

filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he

was denied medical care while incarcerated in two Dallas County

jails between January 13 and March 21, 1993. Flowers named

Sheriff Jim Bowles and an unidentified medical director as

defendants. 

Flowers was first incarcerated at the Lew Sterrit Jail. 

There, Flowers claims he told a prison nurse that he had recently

undergone back surgery and needed various medications prescribed

for his pain. Flowers alleges that, despite his request, he was

deprived of these medications during the time he was interned in

the jail. 

After three days, Flowers was transferred to a second

facility, where he claims he approached a guard about acquiring

the medication for his back pain. According to Flowers, the

guard gave him request forms, which Flowers maintains he mailed

repeatedly to both Sheriff Bowles and the medical director. 

Flowers further contends that he did not receive a reply from

either the sheriff or the medical director during the sixty-four

days he was incarcerated in the center. 

Flowers filed his complaint on March 28, 1994. On August

19, 1994, the magistrate judge sent an interrogatory to Flowers,

asking Flowers to better define his cause of action. When

Flowers did not respond within thirty days, the magistrate judge

recommended that the district court dismiss the action for
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failure to prosecute. Flowers promptly objected that he had

never received the interrogatory. The district court sided with

Flowers, holding that because it was possible Flowers had not

received the interrogatory, dismissal was inappropriate. 

Additionally, the district court instructed the magistrate judge

to reissue the document to Flowers.

After Flowers replied to the new interrogatory in full, the

magistrate judge recommended that the district court dismiss the

complaint as frivolous. The magistrate judge first noted that he

was uncertain whether Flowers was a pre-trial detainee or a

convicted prisoner at the time he was allegedly denied his

medication. Thus, the magistrate judge could not determine

whether to apply a Fourteenth Amendment standard, which would

govern the denial of medical care to a pre-trial detainee, or an

Eighth Amendment standard, which would govern the denial of

medical care to a convicted prisoner. Nevertheless, the

magistrate judge determined Flowers had not stated an arguable 

§ 1983 claim under either standard. Specifically, the magistrate

judge maintained that Flowers had failed to demonstrate that the

individual defendants had denied him medical care.

Flowers filed an objection to the recommendation, alleging

that he was a pre-trial detainee for one month while incarcerated

in the county jail and was thereafter a convicted felon. 

Additionally, Flowers claims that he cannot communicate fluently

in English, but that he could show the personal involvement of

the defendants, if given the opportunity. Despite Flowers'
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objections, the district court adopted the magistrate judge's

recommendation and dismissed Flowers' complaint as frivolous.

II. STANDARD OF REVIEW

A § 1983 plaintiff who proceeds in forma pauperis is subject

to dismissal if his complaint is "frivolous" within the meaning

of 28 U.S.C. § 1915(d). Under § 1915(d), an in forma pauperis

complaint is frivolous if it lacks an arguable basis in law or in

fact. Denton v. Hernandez, 112 S.Ct. 1728, 1733 (1992).

We review a § 1915(d) dismissal only for an abuse of

discretion because a determination of frivolousness -- whether

legal or factual -- is a discretionary one. Denton, 112 S.Ct. at

1734; Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992). In

reviewing for an abuse of discretion, we consider whether (1) the

plaintiff is proceeding pro se; (2) the court inappropriately

resolved genuine issues of disputed fact; (3) the court applied

erroneous legal conclusions; (4) the court has provided an

adequate statement of reasons for dismissal which facilitates

intelligent appellate review; and (5) the dismissal was with or

without prejudice. Denton, 112 S.Ct. at 1734. 

III. ANALYSIS

 We agree that Flowers has failed to allege an arguable

claim against either the sheriff or the unnamed medical director

for the three days of medical treatment he was allegedly denied

in the Lew Sterrit Jail. Under § 1983, supervisory officials

cannot be held liable for the actions of their subordinates on

any vicarious liability theory. Thompkins v. Belt, 828 F.2d 298,
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303 (5th Cir. 1987). Rather, a supervisor is liable only if he

is personally involved in a constitutional deprivation or if

there is a sufficient causal connection between the supervisor's

wrongful conduct and the constitutional violation. Id.

Supervisory liability also exists under § 1983 if the supervisory

official implements a policy so deficient that the policy itself

is a repudiation of constitutional rights and is the moving force

behind the constitutional violation. Id. During his three days

of incarceration in the Lew Sterrit Jail, Flowers claims that he

informed a nurse of his need for medication. Flowers has alleged

no further facts indicating that either the sheriff or the

medical director knew of his need for medication or that they

acted directly or indirectly to deny him his medication. 

Accordingly, Flowers has alleged no set of facts which could form

an arguable basis of liability against the named defendants and

his claim with regard to detention in the Lew Sterrit Jail is

therefore legally frivolous.

With regard to his claims arising after he was moved to the

second facility, Flowers has alleged facts which could implicate

personal involvement by both defendants in the alleged

constitutional violation. Moreover, Flowers asserts claims that

may arise under both the Eighth and Fourteenth Amendments. That

is, any constitutional deprivations Flowers can prove occurred

while he was still a pre-trial detainee involve claims under the

Fourteenth Amendment, see Grabowski v. Jackson County Public

Defenders Office, 47 F.3d 1386, 1386 (5th Cir. 1995), reh'g en
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banc granted, No. 92-7728, 94-60089 (March 14, 1995); see also

Bell v. Wolfish, 441 U.S. 520, 537 (1979), and any constitutional

deprivations Flowers can prove occurred after he was convicted

involve claims under the Eighth Amendment. Estelle v. Gamble,

429 U.S. 97, 97 (1976).

In order to prevail on an Eighth Amendment claim, the

Supreme Court has held that a convict must prove that a defendant

acted with deliberate indifference to his serious medical needs. 

Estelle, 429 U.S. at 97. The standard for recovery on a

Fourteenth Amendment claim, which has previously been more

liberal than its Eighth Amendment counterpart, is currently under

review by the en banc court. See Hare v. City of Corinth, 36 F.3d

412, 415 (5th Cir. 1994), reh'g en banc granted, No. 93-7192

(Dec. 8, 1994). Even assuming arguendo that we were to adopt a

Fourteenth Amendment standard as strict as that currently

required to prove an Eighth Amendment claim, it is clear that

Flowers' claim is not legally frivolous.

Because § 1983 does not provide for supervisory liability,

Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987), the sheriff

and the medical director in the case at bar would not be liable

unless Flowers could prove that they were personally involved in

denying Flowers' alleged written requests for medical treatment. 

On the other hand, if Flowers proved that the sheriff or the

medical director was personally and deliberately indifferent to

his written requests, he could prevail on his claim against that

defendant. Furthermore, the post-operation back pain Flowers
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alleges he suffered at the time of his incarceration could meet

the Eighth Amendment standard of "serious medical need." In

short, because Flowers has alleged facts which present an

arguable claim even under an Eighth Amendment standard, the

district court's dismissal of Flowers' claims arising from the

period after he was transferred from the first facility

constituted an abuse of discretion.

IV. CONCLUSION

For the foregoing reasons, the district court's judgment is

AFFIRMED in part and REVERSED and REMANDED in part.
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