UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-1694

Summary Calendar

Spencer Charles Parker,

Plaintiff-Appellant,

VERSUS

Don Carpenter, Sheriff, ET Al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(November 23, 1992)

Before THORNBERRY, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

THORNBERRY, Circuit Judge:

Proceeding pro se and in forma pauperis, Parker filed an

action under 42 U.S.C. § 1983 alleging retaliatory acts,

deliberate tardiness in tending to serious traumatized injuries and

deliberate lack of adequate post-operati ve treatment. No

evidentiary hearing was ordered by the district court, and the

action was dismissed because the court concluded that Parker had no

realistic chance of ultimate success in the action. In addition,

the court n oted that Parker was attempting to re-litigate claims

previously made in a similar action. Finding merit in Appellant's

claims, we reverse the dismissal of Appellant's action and direct

the district court to conduct proceedings not inconsistent with1 While a district court may dismiss sua sponte an IFP

proceeding as frivolous after initial examination of the

complaint, the court need not label the dismissal "frivolous"

under 28 U.S.C. § 1915(d). Spears v. McCotter , 766 F.2d 179, 181

(5th Cir. 1985). This circuit approves dismissal of an IFP

proceeding under § 1915(d) when it lacks an arguable basis in

fact and law. ANCAR v. SARA Plasma, 964 F.2d 465 (5th Cir.

1992). this opinion.

Facts and Prior Proceedings

Appellant Spencer Charles Parker filed this civil rights

action against Tarrant County Sheriff Don Carpenter, the Tarrant

County Medical Examiner and the jail and jail administrator. The

action was filed in forma pauperis pursuant t o 28 U.S.C. § 1915.

Appellant alleges that the defendant s violated his civil rights

when, out of retaliation, a jail guard moved Appellant from a lowrisk minimum security facility to a high security area inhabited by

more violent inmates. As a result of the transfer, Appellant was

permanently disabled by the loss of his right eye after being

assaulted by a violent inmate. Appellant further alleges that jail

personnel were slow to get him medical attention and were later

indifferent toward getting him timely post-operative treatment.

The district court dismissed the action concluding that

Appellant had no realistic chance of ultimate success on his

claims. 1

Standard of Review

This court reviews dismissal of a civil rights action filed by

a pretrial detainee proceeding i n forma pauperis for abuse of

discretion. Cay v. Estelle, 789 F.2d 318, 326 (5th Cir. 1986)

(citing Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986)).2 A district court may send a questionnaire to a prisoner

before service, requiring him to give greater detail about the

facts and his claims. Cay , 789 F.2d at 323 (citing Watson v.

Ault , 525 F.2d 886, 893 (5th Cir. 1976)). The court may also

authorize a magistrate to hold an evidentiary hearing to

determine whether the claims are frivolous. Cay , 789 F.2d at 323

(citing Spears , 766 F.2d at 182). This is otherwise known as a

Spears hearing . In addition, this circuit cited with approval

the procedure developed by the Tenth Circuit: ordering the

prison officials to investigate the facts surrounding a civil

rights suit by inmates to construct "an administrative

record...to enable the trial court to...make a determination [of

frivolity]...." Cay , 789 F.2d at 323 n.4 (citing Martinez v.

Aaron , 570 F.2d 317 (10th Cir. 1978). More recently, this court

allowed a pro se § 1983 complainant to conduct discovery in

order to more adequately state his claim. Murphy v. Kellar , 950

F.2d 290 (5th Cir. 1992). Discussion

A. The Controlling Principles

Due to potential abuses by prisoners proceeding in forma

pauperis, this circuit has given district courts broad discretion

in making the determination of whether an in forma pauperis

complaint is frivolous. Cay

, 789 F.2d at 325 (citations omitted).

As we have noted before, it is not always easy to determine whether

a claim is frivolous simply by examining a complaint written by a

prisoner unfamiliar with the rules of our courts. Prisoner

complaints, more often than not, are difficult to decipher.

However, this court has insisted that when it is not apparent from

the f ace of the complaint whether the prisoner's contentions are

frivolous or not, the district court should make an effort to

develop the known facts until satisfied that either the claims have

merit or they do not. S ee Cay

, 789 F.2d at 325. We have

suggested that this may be done in a number of ways. 2 It should

be remembered that Congress enacted § 1915 to allow indigent

persons meaningful access to the federal courts. While this court3 This is not to say that there exists no situation where,

based solely on an examination of the complaint, the complaint

could be dismissed as frivolous. For example, under some

situations, a prisoner making allegations under the Eighth and

Fourteenth Amendments must allege facts sufficient to establish

that prison officials were deliberately indifferent to his

rights. See Daniels v. Williams , ___U.S. ___, 106 S.Ct. 662, 88

L.Ed.2d 662 (1986); Whitley v. Albers , ___U.S.___, 106 S.Ct.

1078, 89 L.Ed.2d 251 (1986). is mindful that in forma pauperis complaints have the potential to

flood the federal judiciary with frivolous litigation, it is also

incumbent upon the district courts to be sensitive to possible

abuses by the prison system in order to ensure that prisoner

complaints, especially pro se complaints, are not dismissed

prematurely. J ackson v. Cain

, 864 F.2d 1235, 1241 (5th Cir. 1989)

(citing Taylor v. Gibson

, 529 F.2d 709, 713 (5th Cir. 1 976)). 3

Repeating what we have stated before,

An opportunity should be provided [for] the prisoner to

develop his case at least to the point where any merit it

contains is brought to light... Pro se prisoner

complaints must be read in a liberal fashion and should

not be dismissed unless it appears beyond all doubt that

the prisoner could prove no set of facts under which he

would be entitled to relief.

Id. T he Supreme Court defines a "frivolous" complaint as a

complaint lacking any arguable basis either in law or in fact.

Neitzke v. Williams

, 490 U.S. 319, 109 S.Ct. 1827, 1831, 104

L.Ed.2d 338 (1989). Utilizing these principles in reviewing the

dismissal of this prisoner's pro se complaint, we find that the

district court abused its discretion. We cannot say, without a

more thorough presentation of the facts, that Appellant's complaint

lacks any arg uable basis either in law or in fact that would

entitle him to relief in this circuit.

B. The Legal Claims1. Retaliation

The record indicates that Appellant was a pretrial detainee

during the events that form the basis of his complaint. In B ell v.

Wolfish

, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the

Supreme Court determined that pretrial detainees may not be

subjected to treatment amounting to punishment since they have not

been adjudged guilty of any crime. Therefore, if a particular act,

condition or restriction accompanying pretrial detention amounts to

punishment, it is forbidden. C upit v. Jones

, 835 F.2d 82, 85 (5th

Cir. 1987). In addition, this circuit holds that an action or

inaction related to a pretrial de tainee is considered punishment

unless it is reasonably related to a legitimate gover nmental

objective. Id. Appellant's complaint alleges that after he had a

verbal altercation with a jail officer, he was punished or

retaliated against when he was transferred from the l ow-risk

minimum security section to the overcrowded violent inmate section

of the Tarrant County Jail. He alleges that it was common practice

after a verbal altercation with jail personnel to simply be moved

around within the minimum security section, not transferred to the

violent offenders section. He further alleges that when he was

placed in the violent offender section, he was denied access to a

bed to lay down on, despite jail official's knowledge of his

serious back condition. It appears that Appellant has plead that

his transfer to the violent inmate section was an act of punishment

which is a legal claim cognizable under a § 1983 claim. We cannot

say that Appellant's complaint lacks an arguable basis in law and

fact because pretria l detainees are entitled to protection fromadverse conditions of confinement created by prison officials for

punitive purp oses. I d

. In addition, we cannot say that the

government had a legitimate objective for moving Appellant to the

violent inmate section because there has never been any evidentiary

hearing in this action nor have the opposing party defendants even

been served.

2. Medical Treatment

Pretrial detainees are entitled to reasonable medical care,

"unless the failure to supply it is reasonably related to a

legitimate governmental objective." C upit

, 835 F.2d at 85. No one

can say for sure whether Appellant's treatment was reasonable

witho ut the presentation of more facts. Therefore, upon remand,

the district court should fully investigate the facts surrounding

Appellant's allegations of unreasonable medical care.

C. Appointment of Counsel

This court may base a decision to appoint counsel on many

factors, including:

1. the type and complexity of the case;

2. the petitioner's ability adequately to present and

investigate his case;

3. the presence of evidence which largely consists of

conflicting t estimony so as to require skill in

presentation of evidence and in cross-examination;

and

4. the likelihood that appointment will benefit the

petitioner, the court, and the defendants by

"shortening the trial and assisting in just

determination."

Murphy

, 950 F.2d at 293 n.14 (quoting Cooper v. Sheriff, Lubbock

County, Texas

, 929 F.2d 1078, 1084 (5th Cir. 1991)). If

Appellant's claims survive preliminary explora tion, in light of

factors two and three above--name ly that Appellant is a prisonerwho, without counsel, would have to investigate by himself the

prison's policies and employees of the very jail where he is

incarcerated--we direct, in addition to holding some type of

evidentiary hearing, the district court to appoint counsel to help

the App e llant fully investigate his claims and provide

representation at any evidentiary hearings.

D. Prior Similar Claims

The district court states in its memorandum opinion that

Appellant has attempted to relitigate claims previously dismissed

for want of a realistic chance of ultimate success and therefore

his present complaint warrants dismissal. After review of the

record, we find that Appellant's claim of retaliation is a new

claim not previously brought before the district court. In

addition, the record indicates that Appella nt's medical claims,

while argued previously before the district court, were never fully

investigated in conformance with prior decisions of th is court.

See Jackson , 864 F.2d at 1241.

Conclusion

Appellant's complaint alleges claims that if substantiated,

would entitle Appellant to relief in this circuit. Whether or not

Appellant can sustain those claims against the Tarrant County Jail

and its employees can only be determined if A ppellant is given a

chance to fully investigate the events surr ounding his claims.

Therefore, we reverse the dismissal of Appellant's action and

remand for proceedings consistent with this judgment.