1 28 U.S.C. § 1915(d) provides in relevant part, "the court

may ... dismiss the [ in forma pauperis ] case if the allegation

of poverty is untrue, or if satisfied that the action is

frivolous or malicious."

1 United States Court of Appeals,

Fifth Circuit.

Nos. 94-10737, 94-10841.

Billy Wayne HORTON, Plaintiff-Appellant,

v.

Janie COCKRELL, et al., Defendants-Appellees.

Dec. 12, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, and WISDOM and STEWART, Circuit Judges.

PER CURIAM:

The plaintiff/appellant, Billy Wayne Horton, is an inmate in

the Clements U nit of the Texas Department of Criminal Justice

(TDCJ). Horton appeals the district court's decision to dismiss

his in forma pauperis civil rights suit against prison officials as

frivolous under 28 U.S.C. § 1915(d) 1

. We find that Horton's

complaint was not frivolous. Therefore, we VACATE the order of

dismissal, and REMAND for further proceedings.

I. Background

In July, 1992, Billy Wayne Horton filed an in forma pauperis

suit in the Eastern D istrict of Texas under 42 U.S.C. § 1983.

While the case was pending, Horton was transferred to the Clements

Unit of the Texas Department of Criminal Justice (TDCJ), located in

the Northern District of Texas. Shortly after arriving at2

Clements, Hor ton was involved in two altercations with another

inmate. As a result of these altercations, Horton filed a

s upplemental complaint in his civil rights suit, contending that

TDCJ officials failed to protect him from a violent inmate.

Specifically, he alleged the following facts:

On Horton's first day at Clements, an inmate named Ronald

Jackson allegedly approached Horton and threatened to assault him

unless he paid "extortion money." The next morning, Horton

reported the threat to the desk officer, defendant John Doe. The

officer said he could not do anything about the situation, and

suggested that Horton write to his correctional counselor.

Later that day, Jackson allegedly approached Horton and made

"threatening gestures." Horton asserts that he had no alternative,

and punched J ackson in self defense, starting a fight. Both men

were charged with fighting and placed in pre-hearing detention.

The following day, Ho rton filed a formal grievance informing the

warden that Jackson was "assaultive," and had tried to extort money

from him. The warden refused any relief and referred Horton to his

correctional counselor. Horton stated that he had already notified

his correctional counselor, and that he wanted to alert the warden

to take action to protect him. Horton's correctional counselor had

told Horton that one inmate could not request the relocation of

another inmate. The warden denied Horton's appeal. Horton and

Jackson were returned to the same prison section after they were

released from detention. Horton filed another grievance alleging

that Jackson was continuing to threaten him and other white3

inmates, and was attempting to start a "race riot."

Shortly thereafter, Jackson allegedly assaulted another white

inmate, and threatened to assault a group of white inmates, but was

prevented from doing so by the arrival of a prison guard. In

response, Horton filed another formal grievance.

Several days later, Jackson allegedly approached Horton while

Horton was drinking from a water fountain, and punched him in the

eye. Horton and Jackson were again both charged with fighting.

The hearing officer refused to hear evidence that Horton was acting

in self defense. There were no further incidents.

After Horton filed his supplemental complaint, the magistrate

judge assigned to the original suit severed the claims arising from

Horton's residence at the Clements Unit, and transferred them to

the Northern District of Texas. The new magistrate judge twice

ordered Horton to supplement his pleadings with additional

information about his suit. Horton did so, although he was tardy

with both responses.

After considering the supplemented pleadings, the new

m agistrate judge recommended that the district court dismiss the

plaintiff's claim as frivolous under 28 U.S.C. § 1915(d). Horton

filed a formal objection to this recommendation, including as

exhibits copies of formal grievances and his correspondence with

his correctional counselor. The magistrate judge ordered Horton to

provide additional copies of his objections and the a ttached

exhibits in accordance with the local rule. Horton filed a typed

"duplicate" of his objections, but could not do the same for his2 Horton also alleges on appeal that TDCJ officials denied

him due process at his disciplinary hearings for fighting by

refusing to allow him to present evidence that he was fighting in

self defense. Horton did not raise this matter in the district

court. In fact, Horton specifically repudiated this claim.

Horton alleged in his complaint that he was not allowed to

present evidence of self defense at his disciplinary hearing, but

then stated, "[p]lease don't construe this as an attack to

overturn the disciplinary conviction, this is not the case.[sic]

4 exhibits. Horton wrote a letter to the clerk of court explaining

that he did not have access t o a copy machine at the prison, but

that he would pay the copying costs if the clerk's office would

make an additional copy of the exhibits for him. The clerk did not

do so, and the magistrate judge ordered the exhibits removed from

the record. The district judge later adopted the magistrate

judge's recommendation and dismissed Horton's case.

Before the district co urt acted on the magistrate judge's

recommendation, Horton filed a motion for leave to file an amended

complaint. The new complaint made minor changes in the alleged

facts and named another defendant in the suit. The magistrate

judge recommended that the district court deny Horton leave to file

the amended complaint. The district court also adopted this

recommendation.

Horton has filed two appeals in this court. The first argues

that the district court abused its discretion in dismi ssing the

case as frivolous, and that the magistrate judge abused his

discretion in removing from the record Horton's exhibits relating

t o his objections to the magistrate judge's recommendation. The

second appeal challenges the district court's decision to refuse to

allow the plaintiff leave to file his amended complaint. 2 WeBut, rather to show deliberate indifference to plaintiff's

predicament, and reckless disregard for plaintiff's personal

safety." Because Horton did not raise this issue in the lower

court, this court will not address it on appeal.

3 We note that Attorney General for the State of Texas filed

an informal letter brief on behalf of the named

defendants/appellees in this case. This letter maintains that

this court does not have jurisdiction over these appeals because

of Horton's failure to serve any of the named defendants within

120 days of filing the complaint in this suit. The defendants

have not raised this issue in the district court, however, and

have not even formally raised the issue in this court, as the

letter brief specifically states that it in no way serves as an

answer or appearance for the defendants in any purpose. While

this court may address issues of appellate jurisdiction and

subject matter jurisdiction on its own motion, it will not do so

with issues of personal jurisdiction which may be waived.

F.R.C.P. 12(h). This is especially true in the case of a

plaintiff's failure to serve process, because the district court

has the power to excuse the deficiency if it finds "good cause"

for the plaintiff's failure. F.R.C.P. 4(m). Therefore, this

court has jurisdiction to hear Horton's appeals.

4 28 U.S.C. § 1915(d); Ancar v. Sara Plasma, Inc., 964 F.2d

465, 468 (5th Cir.1992).

5 Id.

6 Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733,

118 L.Ed.2d 340 (1992).

5 address each of these arguments in turn. 3

II.

Horton first appeals the district court's decision to dismiss

his suit as frivolous. A district court may dismiss an i n forma

pauperis proceeding if the claim has no arguable basis in law and

fact. 4 We review that decision for abuse of discretion. 5

A claim is factually frivolous only if the "facts alleged

give rise to the level of the irrational or the wholly

incredible." 6 Merely unlikely allegations will not satisfy this7 Id.

8 Id.; see also, Gartrell v. Gaylor, 981 F.2d 254, 259 (5th

Cir.1993).

9 Farmer v. Brennan, --- U.S. ----, ----, 114 S.Ct. 1970,

1976, 128 L.Ed.2d 811, 822 (1994).

10 Id. at ----, 114 S.Ct. at 1977, 128 L.Ed.2d at 823.

11 Id.

12 Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 1000,

117 L.Ed.2d 156 (1992).

6 demanding tes t. 7 In addition, in making this determination, a

court must accept as true all the facts as alleged in the

complaint. 8 In the circumstances of this case, we find that

Horton's claim is arguable in both law and fact.

Prison officials have a duty under the Eighth Amendment to

protect inmates from violence at the hands of other prisoners. 9

Not every injury suffered by a priso ner at the hands of another

rises to the level of a constitut ional violation, however. 1 0 The

plaintiff prisoner must p rove both that he is incarcerated under

c onditions "posing a substantial risk of serious harm," and t hat

the prison official's state of mind i s one of "deliberate

indifference" to the prisoner's health or safety. 11

There is no concise definition of what types of prison

conditions pose a "substantial risk of serious harm" under the

Eighth Amendment. Instead, we examine this component of the test

"contextually," making sure to be responsive to "contempora r y

standards of decency." 12 We must consider "whether society

considers the risk

... to be so grave that it violates contemporary13 Helling v. McKinney, --- U.S. ----, 113 S.Ct. 2475, 125

L.Ed.2d 22 (1993).

14 Id. at ---- - ----, 113 S.Ct. at 2480-81.

15 Id.

7 standards of decency to expose anyone unwillingly to such a risk." 13

We also must consider that the Eighth Amendment is intended to

protect against both present and future dangers to inmates. 14

Prison authorities must protect not only against current threats,

but also must guard against "sufficiently imminent dangers" that

are likely to cause harm in the "next week or month or year." 15

Applying these principl es to the present case, Horton's

complaint alleges injuries that are arguably serious enough to

constitute "serious harm" under both law and fact. Our society

does not tolerate extortion inside or outside of prison, and also

does not tolerate physical assaults. Although Horton threw the

first punch in the initial altercation with Jackson, he arguably

did so in self defense, because of the alleged threats of extortion

and assault. Furthermore, the second assault by Jackson at the

water cooler was apparently unprovoked. Although Horton did not

sustain serious injuries, he could have been severely injured

either in one of those two altercations, or at a later time. This

is arguably the type of "imminent danger" against which a prison

official must protect. Thus, Horton's complaint meets its burden

for the first element of the Eighth Amendment claim.

The second requirement of the plainti ff's claim is that the

prison official be "deliberately indifferent" to the inmate's16 Farmer, --- U.S. at ----, 114 S.Ct. at 1976.

17 Id. at ----, 114 S.Ct. at 1979.

18 Id.

19 Id. at ----, 114 S.Ct. at 1981.

8 health or safety. 16 This requirement is satisfied if the official

is both "aware of facts from which the i nference could be drawn

that a substantial risk of harm exists," and that official actually

draws that inference." 1 7 This issue is a question of fact, which

may be proved many ways, including from circumstantial evidence. 18

Indeed, the "[f]actfinder may conclude that a prison official knew

of a substantia l risk form the very fact that the risk was

obvious." 19

Horton's claim is arguable in both law and fact. The

plaintiff filed three grievances about Jackson, made at least one

oral complain t to a prison guard, and wrote his correctional

counselor about the probl e m. Furthermore, Jackson apparently

assaulted other inmates, and allegedly attempted to start a "race

riot." All of these incidents took place over a two week period.

Thus, the officials at the Clements Unit were arguably aware of

facts indicating that Horton and other inmates were in danger of

assault from Jackson. In fact, the very frequency of Jackson's

alleged violence could lead to the conclusion that Jackson posed an

"obvious risk" to other inmates, even without Horton filing formal

complaints.

Thus, accepting all the pleaded facts as true, H orton's

complaint has an arguable basis in both law and f act for both20 Davis v. United States, 961 F.2d 53, 57 (5th Cir.1991).

9 elements of his Eighth Amendment claim. This is enough to survive

the § 1915(d) test for dismis sal. The district court abused its

discretion by dismissing the case on this basis.

Because we vacate the district court's order of dismissal, we

need not address Horton's second claim that the magistrate judge

erred in removing from the record Horton's exhibits filed with his

objections to the magistrate judge's recommendation of dismissal.

III.

Horton's final appeal argues that the district court erred in

denying him leave to amend his complaint. This decision is

reviewed for abuse of discretion. 20

Federal Rule of Civil Procedure 15(a) provides that "a party

may amend the party's pleading once as a matter of course at any

time before a responsive pleading is filed. " In this case, the

defendants have not yet even been served with the complaint, and

therefore have not filed any responsive pleadings. Although Horton

had amended his complaint in response to the magistrate judge's

order, this was his first request to amend his complaint on his own

initiative. It would appear then that the district court abused

its discretion in denying the plaintiff leave to amend. On remand,

the court should allow Horton to file his amended complaint.

IV. Conclusion

For the foregoing reasons, we VACATE the order of dismissal of

the plaintiff's complaint, and RE MAND the case for further

proceedings. In addition, we direct the district court on remand10

to allow the plaintiff leave to file his amended complaint.