### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40012

FREDDIE R. COLEMAN, Plaintiff-Appellant
v. DAVID SWEETIN; GREGORY OLIVER; RICHARD C OWAN; ROY BROWN, Sued in his official and individual capacity; SHELIA DALE, Sued in her official and individual capacity; MAE COBB S , Sued in her official and individual capacity; DEBBIE ERWIN, Sued in her official and individual capacity; CRAIG FISHER, Sued i n h is official and individual capacity; BLAKE LAMB, Sued in his official and individual capacity; UNKNOWN MCMANUS, Sued in her of f i c ial and individual capacity; BRENDA HOUGH, Sued in her o fficial and individual capacity, Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Texas

Before DAVIS and JONES, Circuit Judges, and MILAZZO, * District Judge. PER CURIAM: Plaintiff Freddie Coleman, Texas Inmate No. 618875, appeals f r o m t h e district court's sua sponte dismissal of his 42 U.S.C. § 1983 suit as frivolous, for failure to state a claim upon w h i c h r e l ief can be granted, and for want of prosecution. W e hold that he d o e s n ot state a claim under the Eighth U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 12, 2014 Ly l e W . Cay ce Clerk

* D is trict Jud ge f

or the Eas tern D is trict of Louis iana, s itting by d es ignation. Case: 12-40012 Document: 00512558958 Page: 1 Date Filed: 03/12/2014No. 12-40012

Amendment with the contention that a slippery shower c ondition may i n f l i c t cruel and unusual punishment. We affirm in part, but a lso reverse in part, and remand for further proceedings. I. A. Coleman filed th i s a ction pro se and in forma pauperis for injuries sustained while incarcerated at the Eastham Unit of the Texas Department of Criminal Justice ("Eastham"). He alleged that the shower floor of the "C Dorm"

was slippery and unsafe. Coleman further alleged that at least thirteen inmates provided him with declarations t hat they had s ustained i n juries fr o m slipping and falling in the C Dorm shower and other dorm showers in Eastham. Coleman contends that defendants David Sweetin, Eastham Senior Warden, and Gregory Oliver, Eastham Assistant Warden, w ere aware of these dangerous conditions y e t c h o se not to t ake corrective a ction. For example, on June 8, 2009, Coleman verbally inf o r m ed Oliver that, w hile working in Eastham's l aundry facilities, h e w i t nessed three inmates fall i n the C Dorm shower. Oliver allegedly responded: "You don't need to worry about what's going

on with the shower floor. You need to wor r y a b out what's going o n with the washing machine." Additionally, between the months o f April a nd May 2009, Coleman sent three "I-60's" to def e ndants Richard Cowan and Roy Brown, Eastham Mainte n a nce Supervisors, i nforming t hem of the dangerous shower conditions. Cowan and Brown advised that t hey w ere unable to a d d r e s s t he problem without a work-order from a "team supervisor" or permission from the warden. Coleman allegedly f

el l in the C Dorm shower on or about June 14, 2009. He informed defendant Sheila Dale, Eastham Officer, of the incident. He stated that he was in severe pain and could not move h is right leg. Dale advised that Coleman m ust wait until the next day for m e dical treatment b ecause the

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infirmary w as closed. Coleman insisted that i t was a n emergency. Dale refused to call her supervisor and never filed an accident report. On or about June 20, Coleman alle g e d l y f e l l i n the C Dorm shower for a second t i m e . Coleman complained t o defendant M ay Cobbs, Eastham Officer, of the incident and s tated that he was in severe p a i n a n d c o u ld n ot m ove his right leg. Cobbs r esponded that the infirmary was closed a nd m edical treatment would have to wait until tomorrow m orning. Coleman s tated that he was in extreme pain and that x-rays were necessary because he heard something "pop[] like a break." Cobbs refused to call her supervisor a nd did not file an accident report. On o r about June 23, Coleman was examined by defendant Cheryl McMa n us, a visiting physician's assistant. Coleman explained that he experienced severe pain e ver since he fell in the C D orm shower on June 14 and June 20. Coleman complained that he could neither move h is right leg nor stand
upon it. McManus o rdered an x-ray. She subsequently examined t he film and opined that Coleman suffered from a n acute case of arthritis. The x-ray technician allegedly d isagreed, explaining that the x-ray revealed s omething

" m o r e t h a n arthritis." McManus responded that the she did not need t he technician's help. 1 M cManus refused t o prescribe pain medication and cleared Coleman to r eturn to work, albeit with crutches. Coleman protested (to n o avail) that Eastham was not handicap accessible. Coleman returned to work at E astham's laundry facilities later that afternoon. Coleman informed Cobbs that he felt physically u nab l e t o perform his duties. Cobbs allegedly responded that, absent a "lay-in," Coleman was required to work or would be d isciplined. Coleman's c o - w o r k e r observed that Coleman

was in pain. The co-worker relieved Coleman from h is d uties and implored him

1 Colem an alleged in his com p laint that D r. Betty William s subs equently s tated that M cM anus w as not qualif ied to read x- rays . 3 Case: 12-40012 Document: 00512558958 Page: 3 Date Filed: 03/12/2014No. 12-40012

to lay down. Coleman left the work site and subsequently attempted to take a shower. While i n the shower, Coleman alleges t hat h e fell f or a third time after his crutches slipped out from underneath him. On July 6, Coleman's prison unit was put on "lockdown" in order t o search for contraband. By July 8 , Coleman alleged that he was i n so much p ain that he felt "hysterical." He was unable to lie in b ed. The pain also prevented Coleman from using the toilet, so he was forced to defecate in a bowl. Beginning on s ome unknown date, Coleman wrote "sick call request slips" daily for 20-25 days. Coleman alleged that each was answered and subsequently disregarded by defendant Brenda Hough, an Eastham Nurse Practitioner. On or about July 10, while Coleman's unit was still on l ockdown, Hough and another nurse made "sick calls" to prisoner cells. After observing Coleman's crutches, Hough determined that she could not t reat Coleman without using an examination table. Because no examination tables were available at the time, Hough refused to examine Coleman. Coleman pleaded with the nurses to take him to t he infirmary. Coleman explained that h e experienced extreme pain and believed that his right hip was broken. H o u g h r e s ponded that s he was not authorized to t r ansport inmates to the infirmary unless they were " bleeding or dying." Hough refused to provide pain medication a nd suggested that Coleman continue to submit sick call requests. Defendants D ebbie E rwin, Eastham Assistant W arden, a nd Major Craig Fisher visited Co l e m a n ' s c ell on or about J uly 12. C oleman's unit was still on lockdown at the time. Coleman in f o r m e d t h e defendants he had fallen in the shower on three separate occasions, that he experienced severe pain a nd could not move his leg, that h e was unable to sleep or use the toilet, and that he had attempted, unsuccessfully, to visit the inf i rmary since June 2 3. Fisher instructed Erwin to r ecord Coleman's name and n umber. Coleman alleged that Erwin and Fisher never contacted the infirmary on his behalf.

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On or about July 13, Coleman w a s s u m moned for a d i sciplinary hearing before D e f

e n d ant Captain Blake Lamb. 2 At some point during the hearing, Coleman complained of his injuries and unsuccessful a ttempts to obtain medical treatm e nt. Lamb responded that he was "running disciplinary court not sickcall" and refused to h elp. Coleman pleaded for Lamb to reconsider his position. Lamb ordered Coleman to leave his office. Hough examined C o l e m a n after lockdown was lifted on July 18. She recognized that he was in pain and ordered an x-ray. Hough informed C oleman, however, that the x-ray could not be taken until three days later when the x-ray technician was scheduled to retur n . C o l eman requested an e mergency x-ray, compl a i n i ng t hat he had experienced p a in since late June. Hough responded that h e could "tough it o u t three more days." C ol e m a n t hen requested pain medication for his hip. He d e scribed the pain as having o vertaken his entire body. Hough refused to provide medication. Coleman w a s x -rayed on July 2 1 and diagnosed with a fractured hip. Hough apologized for ignoring Coleman's previous complaints and arranged for him to be seen at the John Sealy Hospital i n Galveston. In p reparation f or transport, Coleman was placed in a wheelchair which w as subsequently loaded into the b ack of a van. Coleman described crampe d a nd uncomfortable conditions. He complained to Hough that he w a s in pain and r equested pain medication for the trip. Hough refused this request. Coleman was trans p o r t e d approximately 178 miles to the hospital on a "rough a nd bumpy" road. By the time he a r r i v e d a t the hospital, Coleman described himself as "out of it" due to the pain. Doctors subsequently inserted four pins and a plate during hip surgery. Coleman continues t o suffer from pain

2 Colem an had been p revious ly w ritten up f or having an "extra s et of clothes p res s ed

. " 5 Case: 12-40012 Document: 00512558958 Page: 5 Date Filed: 03/12/2014No. 12-40012

and t akes "notriptyline," which he described as a psychotic drug for depression and pain. B. Coleman filed suit pro se and in forma pauperis against Sweetin, Oliver, Cowan, H o ugh, Brown, Dale, Cobb s , E r w in, Fisher, Lamb, and McManus in federal court on September 27, 2010. C oleman alleged violations of the Eighth Amendment for unsafe prison conditions and inadequate medical care. The magistrate judge h eld a Spears hearing on April 21, 2011. Nurse Tara P a t t o n c o n f

i r m e d t h a t Coleman's prison file contains two x-rays, numerous I-6 0 ' s to t h e m e d i cal department, a nd documentation from the Galveston hospital. Patton stated that the second x-ray revealed a "definitive" fracture. The magistrate j udge then questioned Ginger L ively, a g r i e v a nce coordinator, as t o whether Colem a n h a d e x h a u s t e d gr i e v ance procedures against all defendants. Lively stated that he had "exhausted on his medical issues" but not his complaints regarding the condition of the dorm shower. The magistrate j u d g e issued a report on April 25, 2011, recommending that Coleman's claims against all d e f e n d ants except M c M a nus be dismissed under 28 U.S.C. § 1915A(b)(1). In the alternative, the magistrate judge noted that Coleman had not exhausted his claims against "security personnel." The district court subsequently received consent f rom the parties to proceed b efore the m agistrate judge pursuant to 28 U.S.C. § 636(c). Each party's consent was signed p rior t o April 25, 2 011. The district c ourt referred the case to the magistrate judge for all proceedings on May 6, 2011. The magistrate judged issued a memorandum opinion a nd order of partial dismissal on May 12, 2011. The order was vir t u a l l y i d entical to t h e April 25, 2011, report and recommendations. On May 18, 2011, Coleman moved f or an e xtension of time t o file objections to the report and r ecommenda t ions. The magistrate judge denied t he motion,

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reasoning that be c a u s e t he parties provided consent under 28 U .S.C. § 636(c), the normal p r ocedures associated with a report and recommendations were no longer applicable. On M a y 3 1 , 2011, the Texas Attorney General's office ("AG") filed an amicus curiae motion stating that it had been unable to contact McManus and therefore could not f

ile a respon s i v e p l eading on her behalf. The AG p rovided McManus's last known address u nder seal. The magistrate judge then directed the Clerk of Court to order a United States Marshal to serve process. On October 5, 2011, the magistrate judge issued a n o rder s tating that the United States Marshal r eturned th e summons f or M cManus unexecuted. Coleman w as g i ven twen t y d a y s f r o m the receipt of the order to provide a current address for M cManus. 3 On October 24, 2 011, the magistrate judge granted in part Coleman's moti on f o r an extension of time t o submit a current address for McManus. T he d e a d l i n e was extended until November 22, 2011. Coleman was warned that no further continuances would be granted. On Novemb e r 28, 2011, a s a result o f C oleman's f ailure to provide a current address for McManus, the magistrate judge dismissed Coleman's claims without prejudice. T h e o r d er noted that the d ismissal w as, de facto , with prejudice, given the expiry of the statute of limitati o n s . F i n al j udgment was entered the same day. Coleman timely appealed. 4

3 The m agis trate jud ged ap p eared to as sum e that s ervice of proces s f ailed becaus e the ad d res s p rovid ed by the AG 's of f ice w as not current. Y e t there is nothing in the record to s ugges t that s ervice f ailed f or this reas on. The record only ref lects that t h e s u m m o n s f or M cM anus w as returned unexecuted

.

4 C olem an f

irs t contend s t h e m a gi s trate j ud ge erred by d is m is s ing his claim s on M ay 12, 2011, p rior to the d ead line f or f iling object i o n s to the Ap ril 25, 2011, rep ort and recom m end ations

. We d is agree. U nd er 28 U

. S. C. § 636(b) ( 1) , litigants m ay object to a rep ort and recom m end ations within f ourteen d ays af

ter service of sam e. If, how ever, the p arties cons ent to p roceed bef o r e the m agis trate jud ge, the magis trate jud ge m ay, w ith the d is trict court' s a p p r o v al, "cond uct any or all p roceed ings

. . . and ord er the entry of jud gm ent. " 28 U

. S. C. § 636( c) ( 1)

. When the m agis trate jud ge enters jud gm ent, an aggrieved p arty ap p eals 7 Case: 12-40012 Document: 00512558958 Page: 7 Date Filed: 03/12/2014No. 12-40012 I I. C o l e man argues t he magistrate judge erred by dismissing his claims against certain defendants for failure to exhaust administrative remedies. We review dismissals for failure to exhaust de novo . Carbe v . Lappin , 492 F .3d 325, 328 (5th Cir. 2007). The P rison Litigation Reform Act of 1995 requires a prisoner to exhaust all available grievance procedures before filing s uit. 42 U.S.C. § 1997e(a). This requirement "applies to a ll inmate suits about prison life, w hether they involve general circumstances or particu l a r episodes." Porter v . Nussle , 5 34 U .S. 516, 532, 122 S. Ct. 983, 992 (2002). In Jones v . B o c k , t he Supreme Court held that e xhaustion is an affirmative defense, rather than a pleading requirement the prisoner must satisfy in his complaint. 549 U .S. 1 99, 216, 127 S

. Ct. 910, 921 (2007). A s such, it is error to dismiss a prisoner's complaint for want of exhaust i o n before a responsive pleading is filed unless the failure to exhaust is clear from the face of the complaint. C

arbe , 492 F.3d at 328. District courts may not circumvent this rule by considering testimony from a Spears hearing or requiring prisoners to affirmatively plead exhaustion through local rules. See id. In response to question III on his f orm complaint, which seeks information

r e g arding t he i nmat e ' s e x h a u s t i o n o f a d m i n i s t r a t iv e r e m e d i e s , C o l e m a n a t t a c h e d copies of the "Step 2" grievances that he p reviously submitted t o prison authorities. He did not o therwise mention exhaustion in his complaint. Thus, in concluding that Coleman failed to exhaust a d m i n istrative remedies, the

d irectly to the court of ap p eals "in the s am e m anner as an ap p eal f rom any other jud gm ent of
a d is trict court. " 28 U

. S. C

. § 636( c) ( 3)

. By cons enting to proceed bef ore the m agis trate jud ge, Colem an als o cons ented to the entry of f

inal jud gm ent p urs uant to 28 U

. S. C. § 636( c) ( 3)

. T hus , any relief from that jud gm ent lies w ith this court. F urtherm ore, Colem an d oes not exp lain how the f ailure to cons id er his objections w as p rejud icial, given that he w as free to rais e the s am e argum ents in a m otion to recons id er or on ap p eal. 8 Case: 12-40012 Document: 00512558958 Page: 8 Date Filed: 03/12/2014No. 12-40012

magistrate judge necessarily relied upon the Step 2 grievances or Li v ely's testimony from the Spears hearing. Either basis constitutes reversible error. 5 III. Because we c annot rely on the affirmative defense o f f ailure t o exhaust, we

m u s t f irst consider the sufficiency of Coleman’s complaint against Sweetin, Oliver, Cowan, and Brown for unsafe prison conditions. We review dismissals under 28 U.S.C. § 1915A de novo . Green v. Atkinson , 623 F.3d 278, 280 (5th Cir. 2010) (per curiam). We accept the facts a lleged in the c o mplaint a s t r u e and construe them in the light most favorable to C oleman. 6 Id. Thus, Coleman's suit

can only be dismissed for f ailure to state a claim if the facts, taken as true, d o not “state a c laim that is plausible o n its face.” Amacker v. R en a i s s a n c e Asset Mgmt. LLC , 657 F.3d 2 52, 254 (5th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads f actual content that allows t h e court to draw the reasonable i nference that t h e defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S

. Ct. 1937, 1949 (2009). This includes the basic requirement that the facts plausibly establish each required element for each legal c laim. Id. at 682-83; Bell A tl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S. Ct. 1955 (2007). However, a complain t is insufficient if it offers only “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.” Iqbal , 556 U.S. at 678, 129 S. Ct. a t 1949 ( quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1955).

5 T his res ult is cons is tent w ith unp ublis hed d ecis ions in w hich w e have int e r p r e t e d Jones and Ca r b e t o p rohibit the us e of f orm com p laints to elicit inf orm ation regard ing a p ris oner's exhaus tion of ad m inis trative rem ed ies

. See, e. g. , Cha m berl a i n v . Cha ndl er , 344 F. Ap p 'x 911 ( 5th C i r . 2 0 0 9) ( p er curiam ) ; M cD ona l d v . Ca i n , 426 F. Ap p 'x 332 ( 5th Cir. 2011) ( p er curiam )

.

6 We als o accep t as true Colem an's tes tim ony in the Sp ea rs hearing. See E a son v . H

ol t , 73 F. 3d 600, 603 ( 5th Cir. 1996) ( exp laining that a Sp ea rs hearing "am p lif [ies ] the allegations in the p ris oner's com plaint" and theref ore "becom es a part of t h e t otal f iling by the p ro se ap p licant")

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Conditions of prison c onfinement are s ubject to Eighth Amendment scrutiny. Farmer v. Brennan , 511 U.S. 8 2 5, 832, 114 S. C t. 1970, 1976 (1994). The "[u]nnecessary a n d wanton infliction[] of pain" provides t h e lodestar for E i g hth Amendment analysis. See Hope v. P elzer , 536 U.S. 730, 7 3 7 , 122 S. Ct. 2508, 2514 (2002). A n E i g hth A mendment claim h as two elements. Farmer , 511 U.S. at 834, 114 S

. Ct. at 1977. "First, the deprivation a lleged must be, objectively, s ufficiently serious" s uch that the prison o fficial's act o r omission constitutes a "denial of the minimal civilized measures of life's necessities." I d. (internal quotation marks omitt e d )

. S e cond, the " prison official must have a sufficiently culpable s tate of mind," i

. e . , h e must act with " d eliberative indifference" t o inmate health and safety. I d. A prison official ac t s with the requisite mental state when he "knows of an d d i s regards a n excessive risk to inmate health or safety; the official m ust both be a ware of f acts f rom which the inference could be drawn t hat a substantial risk of serious h arm exists, and he must also draw the inference." I d. In dismissing Coleman's claims against Sweetin, Oliver, C owan, and Brown, the lower court essentially held t hat prisoner slip-and-fall claims almost

never s erve as the predicate for constitutional violations as a matter of law. We agree with this conclusion. Coleman fails to state a claim as to the first prong of the Farmertest. A slippery shower floor, although a potential h azar d , i s “a daily risk faced by

m e m b e r s of the p ublic at large.” R eynolds v. P owell , 3 70 F .3d 1028, 1031 (10th C ir. 2004); see also LeMaire v. M a a ss , 12 F

. 3d 1444, 1 457 (9th C i r . 1993); Jackson v. Arizona , 885 F .2d 639, 641 (9th Cir. 1 989) ( “slippery prison floors

. . . do not state even an arguable claim f or cruel a nd u nusual punishment”). Other federal courts, including district courts in this circuit, have frequently rejected

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constitutional claims arising from slip and fall accidents. 7 The usual reasoning is that the existence of slippery conditions in any p opulous environment represents at most ordinary negligence rather t han a condition so threatening

as to implicate constitutional standards. One exception serves to reinforce this general rule of r ejection. In F r o st v. Agnos , 152 F.3d 1124, 1128-29 (9th C ir. 1998), the co u rt reversed s ummary judgment for a p risoner who asserted an Eighth Amendment claim a fter he s l i p p e d a n d f ell in the shower while on crutches. The Frostdecision, however, rests on defendants’ failure to accommodate his disabled conditio n , n o t s imply on the s lippery floor. Earlier, in Le M a i re , the Ninth C ircuit refused to hold that “shackling a dangerous inmate i n a shower c reates a sufficiently unsafe condition.” Thus, that Coleman asserts foreknowledge of t he slippery cond i t ions b y the w ardens and maintenance supervisors is not relevant to the first prong of Farmer

. IV. The Eighth A mendment requires t hat inmates receive " a dequate medical care." See Rogers v. B oatright , 709 F.3d 403, 409 (5th C i r . 2013) (internal quotation m arks omitted). P rison officials m ay violate this mandate when they exhibit " d eliberate i ndifference to a prisoner's serious medical needs." Easter v.

7 See N obl e v . G ri m es , 350 F. Ap p ’x 892, 893 ( 5th C ir. 2009) ( af f irm ing d is m is s al as f rivolous o f p r i s o n e r § 1983 claim that d ef end ant w as d eliberately ind if f erent by f

ailing to correct s lip p ery show er floor) ; B ea sl ey v . A nderson , 67 F. Ap p ’x 242, 242 ( 5th Cir. 2003) ( s am e) ; M a ck v . Johnson , 48 Fed

. Ap p ’x 105, 105 ( 5th Cir. 2002) ( s am e) ; M a rsh v . Jones , 53 F. 3d 707, 712 ( 5th Cir. 1995) ( hold ing that E ighth Am end m ent violation bas ed o n w et f loor caus ed by leak ing or s w eating air cond itioner unit) ; D e n z v . C l ea rf i el d Cnty. , 712 F. Sup p . 65, 66 ( W. D. Pa. 1989) ( f

ind ing no Eighth Am end m ent v iolation bas ed on a slip p ery f loor in p ris on cell) ; M i tchel l v . West Vi rgi ni a , 554 F. Sup p . 1 2 1 5 , 1 2 1 6

- 17 ( N. D

. W. V a. 1983) (f ind ing no Eighth Am end m ent violation bas ed on s lip p ery f loor in p ris on dining hall) ; Robi nson v . Cuyl er , 511 F. Sup p . 161, 162, 163 (E. D

. Pa. 1981) ( f ind ing no Eighth Am end m ent violation bas ed on s li p p e r y f

loor in p ris on k itchen) ; Tunsta l l v . Row e , 478 F. Sup p . 87, 88, 89 ( N

. D

. Ill. 1979) ( f ind ing no Eighth A m end m ent violation bas ed on g r e a s y p ris on stairw ay) ; Snyder v . Bl a nkenshi

p , 473 F

. Sup p . 1208, 1209, 1212- 13 ( W. D

. Va. 1979) ( f ind ing no Eighth A m end m ent violation bas ed on p ool of s oap y w ater f rom leak ing dis hw as her in pris on k itchen) , a ff’d , 618 F. 2d 104 ( 4th Cir. 1980)

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Powell , 467 F.3d 459, 4 63 (5th Cir. 2006). We address the defendants against whom these allegations were made. The magistrate judge c oncluded that pri o r t o Coleman's June 23 x-ray,

none of t he defen d a n t s were aware of Coleman's serious m edical needs. Whether thi s i s correct o r not, we do not explore, because C oleman did n ot adequately brief in this court any contention that t he magistrate judge erred in dismissing Dale and Cobbs, the correction officers who saw h im a f t er his first two falls. Yohey v. Collins , 985 F.2d 222, 225 (5th Cir. 1993) (pro se appellants’ “arguments must be briefed to be preserved.”). Coleman's allegations s uggest that Erwin and Fisher b ecame aware of his serious medical need s . He informed them during l o ckdown t hat he had fallen multiple times, his right hip was broken, and h e w as unable t o move his leg, lie in bed, or use the toilet. C oleman also stated that despite his best efforts, he had been unable to v isit the infirmary for the last four weeks. Fisher allegedly told Erwin to write down the report, but they allegedly did not follow up. The complaint also alleges that Lamb was aware o f Coleman' s serious medical needs. At s ome point during his disciplinary hearing , C o l e m a n i n f o r m e d Lamb that he was in pain, that he c ould not move his leg , a nd that he already asked several officials for medical attention but had been ignored. In order to demonstrate deliberate i ndifference when alleging inadequate medical treatment, a prisoner mu s t s h o w t hat o fficials " refused t o treat him, ignored his complaints, intentionally treated him incorrectly, or e ngaged in any similar conduct tha t w o uld clearly evince a wanton disregard for any serious medical needs." G obert v. Caldwell , 463 F.3d 339, 346 ( 5th Cir. 2 006) (internal quotation marks omitted). A ssuming, a s we m ust, that the facts alleged in the complaint are true, Erwin and Fisher ignored Coleman's complaints and pleas for help. We must r everse the dismissal o f these defendants a nd r emand for further proceedings.

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With regard to defendant La m b , h o wever, t he mere allegation that Coleman complained of his pain and lack of o fficial r e s p o nse during a disciplinary proceeding Lamb conducted on an entirely different m atter does not suffice for Eighth Amendment purposes. L a mb, unlike Erwin a nd F isher, is not alleged to have h a d duties at t he prison other than with r espect to this discipline proceeding. Coleman cannot show from the single e ncounter enough of an interaction w ith Lamb to demonstrate Lamb’s potential d eliberate i ndifference. Coleman alleges that Hough r efused to treat him until July 18, 2009. We have repeatedly held that " '[d]elay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference [that] results in substantial harm .'" Easter , 467 F.3d at 4 64 (second alteration and e mphasis in original) (quoting Mendoza v. Lynaug h , 9 89 F.2d 191, 193 (5th Cir. 1993)). Coleman suffered substantial harm as a result of Hough's persistent refusal to

answer his "sick-call request slips" or provide pain medication even w hen he was in so much pain that he was unable to lie down i n bed or use t he toilet properly. Hough also refused to provide pain medication in a nticipation of C o leman's long trip to the hospital, causing him to s uffer greatly. These allegations are sufficient to raise the possibility of Hough’s d eliberate i n difference t o Coleman’s serious m edical needs. W e reverse the dis m i s s a l of Hough and remand for further proceedings. V. Col e m a n contends the magistrate judge erred by d i smissing his claims against M cManus fo r w a n t of prosecution and failure to o bey a court order. Rule 4 1(b) authorizes the district court to dismiss an action sua sponte for failure to prosecute or comply with a c o u r t o r d er. See Long v. Simmons , 77 F.3d 878, 879 (5th Cir. 1996). We review for abuse of discretion. Bryson v. United States , 553 F.3d 402, 403 (5th Cir. 2008). Our review is more exacting where, as here, "the dismissal is w ithout prejudice but the applicable statute of limita t i o n s

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probably bars future litigation." 8 Boazman v. Econ. Lab., I nc. , 5 37 F.3d 2 10, 213 (5th Cir. 1 9 7 6 ). We review such dismissals as we would dismissals with prejudice. See Berry v. Cigna/ Rsi-Cigna , 975 F.2d 1 188, 1191 ( 5th Cir. 1992).

" D i s m i s s a l w ith prejudice

. . . is an extreme sanction that deprives a litigant of the o pportunity to p u r s u e h is claim." Gonzales v. Firestone Tire & Rubber Co. , 610 F .3d 241, 247 (5th Cir. 1980). A dismissal with prejudice will be affirmed only if: (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) l esser sanctions w ould not serve the best interests of justice. Sealed Appellant v. Sealed Appellee , 452 F .3d 415, 417 ( 5th Cir. 2006). Because this test is conjunctive, both elements must be present. 9 The lower court dismissed McManus because C o leman failed to provide a current address in o r der to e ffectuate service o f process. Special rules govern the procedure for s ervice of process w hen p l a i n t iffs proceed in forma p auperis

. Lindsey v. U

. S

. States R.R. Retirement Bd. , 101 F.3d 4 44, 446 (5th Cir. 1996). Under 2 8 U.S.C. § 1915(d) and Rule 4(c)(3), the district court is required to order that service be made by an officer of the court. T he propriety o f the lower court's dismissal must be reviewed in light of these provisions. When he learned that the marshal had not served process, C o l e m a n m o v e d to continue the deadline for providing McManus's current a ddress two weeks after he was ordered to furnish it. As grounds f or th e c o n t inuance, Coleman stated that he intended to s eek discovery from the G alveston Hospital, the Texas Department of C riminal Justice, and the "U.T.M.B." T h e m a gistrate judge

8 We have ap p lied this heightened s tand ard of review w here the und erlying bas is f or d is m is s al was untim ely s ervice of p roces s . See M i l l a n v . U

SA A Gen. Indem

. Co. , 546 F. 3d 321, 326 ( 5th C ir. 2008) ( collecting cas es )

.

9 In ad d ition, w e generally af f irm d is m is s als w ith p rejud ice only up on a f ind ing of at leas t one of three aggravating f actors : "( 1) d elay caus ed by [ the] p laintif f him s elf and not his attorney; ( 2) actual p rejud ice to the d ef end ant; or ( 3) d elay caus ed by intentional c ond uct. " Pri ce v . M

cG l a thery , 792 F. 2d 472, 474 ( 5th Cir. 1986)

. 14 Case: 12-40012 Document: 00512558958 Page: 14 Date Filed: 03/12/2014No. 12-40012

g ranted the motion in part and extended the deadline by approximat e l y o n e month. Coleman's r equest to conduct additional d iscovery was denied because the AG had already submitted McManus's l a s t k nown address. T hus, the magistrate judge concluded that it would be futile "to conduct discovery for an address that has alrea d y b e en provided." Coleman received the order on November 2, 2011. C oleman did not p rovide McManus' current address and the magistrate judge dismissed Coleman's claims on November 28, 2011. Coleman's failure to provide a current address for McManus constitutes, at worst, negligent behavior. Moreover, it does not follow f rom the AG's inability to provide a c urrent address for McManus that any attem p t t o d iscover the address from the Galveston Hospital, Texas D epartment of Cri m inal Justice, U.T.M.B., or any other entity would be futile. Und e r t h e circumstances, Col e m a n d id not exhibit the recalcitrance that o ur case law requires for a dismissal with prejudice. Because the record is devoid of material d e l a y or contumacious conduct, we reverse the dismissal of McManus and remand for further proceedings. VI. For the reasons previously stated, w e affirm the d ismissals of defendants Sweetin, Oliver, C owan, Brown, Dale, C obbs, a nd Lamb; we reverse a nd remand the d i s missals of defenda n t s E r w in, Fisher, Hough, and M cManus for further proceedings in accordance herewith.

J UDGMENT AFFIRMED IN PART, REVERSED AND R EMANDED IN PART.

15 Case: 12-40012 Document: 00512558958 Page: 15 Date Filed: 03/12/2014