IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10491

Summary Calendar

ANTHONY DESHAWN THOMAS,

Plaintiff-Appellant

v.

JOHN MILLS, MD, Medical Director; D. PEYTON, LVN, John Peter Smith 

Hospital - Correctional Healthcare,

Defendants-Appellees

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:14-CV-9

Before DAVIS, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

Anthony Deshawn Thomas, Texas prisoner # 1864213, proceeding pro se 

and in forma pauperis, appeals the district court’s judgment dismissing with 

prejudice his 42 U.S.C. § 1983 complaint for failure to state a claim upon which 

relief could be granted. Thomas also moves for the appointment of counsel.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 27, 2015

Lyle W. Cayce

Clerk

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No. 14-10491

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In his § 1983 complaint, Thomas alleged that the defendants were 

deliberately indifferent to his serious medical needs during his five-month 

detention at the Tarrant County Jail by failing to provide him with a 

replacement mask for his personal Continuous Positive Airway Pressure 

(CPAP) machine, which he had been using to treat his obstructive sleep apnea. 

He also asserted that there was “no legitimate penological interest in not 

providing” him with a CPAP mask, which was necessary for the CPAP machine 

to function, and that the defendants also violated the Americans with 

Disabilities Act (ADA) and Rehabilitation Act (RA). 

On appeal, Thomas argues, inter alia, that the district court erred in 

dismissing his complaint without giving him opportunity to amend his 

complaint to correct any deficiencies and that his complaint stated a plausible 

claim for deliberate indifference.

A prisoner’s civil rights complaint may be dismissed at any time if it fails 

to state a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 

28 U.S.C. § 1915A(b)(1). We review de novo the district court’s dismissal of 

Thomas’s civil rights complaint for failure to state a claim under § 1915A(b)(1), 

using the same standard applicable to dismissals under Federal Rule of Civil 

Procedure 12(b)(6). See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013). 

Before dismissing a pro se litigant’s case for failure to state a claim, a 

district court ordinarily must give the litigant an opportunity to amend his 

complaint to remedy the deficiencies, which is primarily done by conducting a 

hearing under Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), or 

requesting a more definite statement through a questionnaire, Eason v. 

Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Because the district court dismissed 

Thomas’s pro se complaint without doing so, we consider whether Thomas’s 

“allegations, if developed by a questionnaire or in a Spears dialog, might have 

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presented a nonfrivolous section 1983 claim.” Id. If, “[w]ith further factual 

development and specificity” his “allegations may pass . . . muster,” we will 

remand to give him “an opportunity . . . to offer a more detailed set of factual 

claims.” Id. at 10. 

Although it appears that Thomas was a pretrial detainee during his 

detention at Tarrant County Jail, “there is no significant distinction between 

pretrial detainees and convicted inmates concerning basic human needs such 

as medical care.” Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001). 

“[P]retrial detainees have a constitutional right, under the Due Process Clause 

of the Fourteenth Amendment, not to have their serious medical needs met 

with deliberate indifference on the part of the confining officials,” Thompson v. 

Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001), and the deliberate indifference 

standard articulated by the Supreme Court in Farmer v. Brennan, 511 U.S. 

825, 837-40 (1994), applies to pretrial detainees and convicted prisoners alike, 

see Hare v. City of Corinth, Miss., 74 F. 3d 633, 643 (5th Cir. 1996). A detainee 

may also challenge the denial of medical care under a conditions-ofconfinement theory. Hare, 74 F.3d at 644-45. A conditions-of-confinement case 

occurs when a constitutional attack is made on the “general conditions, 

practices, rules, or restrictions of pretrial confinement.” Id. at 644. 

The record reflects that Thomas supported his complaint with 

documents evidencing his obstructive sleep apnea and long-term use of a CPAP 

machine and that Thomas repeatedly requested, but was denied, a 

replacement mask for his CPAP machine. Those facts, along with Thomas’s 

medical history and complaints of choking and gasping for air throughout the 

night, were noted in the numerous unsuccessful medical requests and 

grievances Thomas made to prison officials, including the defendants. 

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Regardless whether Thomas can ultimately prevail on the merits of his 

deliberate indifference claim, the facts alleged by Thomas in support of his 

claim are not “fantastic or delusional,” nor is his legal theory of liability 

asserted “indisputably meritless.” Eason, 14 F.3d at 9 n.5 (internal quotation 

marks and citation omitted). While we express no view on the ultimate 

disposition of Thomas’s suit, his allegations, viewed in the light most favorable 

to him, are sufficient to state a claim of deliberate indifference that is at least 

plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, 

Thomas should have been permitted to develop his arguments concerning an 

alleged infringement of his rights under the ADA and RA.

Accordingly, the district court’s judgment dismissing Thomas’s 

complaint for failure to state a claim upon which relief could be granted is 

VACATED, and this case is REMANDED for further proceedings consistent 

with this opinion. Thomas’s motion for the appointment of counsel is DENIED, 

given that this case is not particularly complex, and Thomas has demonstrated 

that he is a capable litigant.

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