* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20024

Summary Calendar

 

ANTHONY L. PIERCE,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Director, Texas

Department of Criminal Justice, 

Institutional Division; BRUCE

THALER; AKBAR SHABAZZ,

Defendant-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-97-CV-3512

- - - - - - - - - -

November 3, 1998

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Anthony L. Pierce, Texas prisoner no. 587, appeals the

district court’s denial of IFP status. The district court denied

IFP both for non-compliance with the PLRA and because it found

that the appeal was not brought in good faith. We note that

Pierce has still failed to comply with the PLRA’s dictate that he

file a current copy of his prisoner trust fund; however, we find

that his non-compliance is mooted by the district court’s entry

of a filing fee order. We thus analyze the district court’s 
No. 98-20024 

-2-

determination that Pierce is not entitled to proceed IFP because

his appeal is not taken in good faith in accordance with the

dictates of Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). 

Pierce has requested appointment of appellate counsel, this

request is DENIED AS UNNECESSARY. The district court was correct

in determining that Pierce’s free exercise claims are frivolous. 

See Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992); Hicks v.

Garner, 69 F.3d 22, 25 (5th Cir. 1995). To the extent Pierce

argues that his shaving pass was revoked based upon an improper

determination that it was no longer medically necessary, his

claim is also frivolous; disagreement with medical treatment does

not state a claim for violation of the Eighth Amendment. Norton

v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). 

Liberal interpretation of Pierce’s complaint, however,

reveals that Pierce may be arguing that his shaving pass was not

revoked but that he was nonetheless forced to shave. A pro se

prisoner is entitled to develop his complaint factually before it

is dismissed by the district court without service for

frivolousness or failure to state a claim. See Eason v. Thaler,

14 F.3d 8, 9-10 (5th Cir. 1994). If the plaintiff “might have

presented a nonfrivolous section 1983 claim” through a Spears

hearing or through a questionnaire, then a dismissal as frivolous

is premature. Id. at 9. This court has not addressed, in a

published opinion, whether forcing a prisoner to shave when he

has a dermatological skin condition caused or aggravated by

shaving can constitute deliberate indifference to a severe

medical need. Although this court has held that minor ailments
No. 98-20024 

-3-

do not constitute a serious medical need, see Wesson v. Oglesby,

910 F.2d 278, 283-84 (5th Cir. 1990), the district court assumed

that Pierce’s condition was minor without eliciting additional

information from Pierce regarding his condition. 

Pierce’s motion for IFP is therefore GRANTED. The district

court’s dismissal of Pierce’s First Amendment claims is AFFIRMED. 

The district court’s dismissal of Pierce’s Eighth Amendment

claims is vacated and remanded for further factual development. 

MOTION FOR IFP GRANTED; AFFIRMED IN PART; VACATED AND

REMANDED IN PART; MOTION FOR APPOINTMENT OF COUNSEL DENIED AS

UNNECESSARY.