* Pursuant to 5 TH C IR

. 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 5 T H

C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20503

Summary Calendar

OLLEN NUGENT,

Plaintiff-Appellant,

versus

DALE MYERS; SAM PRESSWOOD;

WALKER COUNTY COMMISSIONERS,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(H-95-CV-3504)

June 3, 1998

Before POLITZ, Chief Judge, WIENER and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge: *

Ollen Nugent appeals the 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal of his pro

se

, in forma pauperis

, 42 U.S.C. § 19 83 civil rights action for failure to state a

claim. For the reasons assigned, we vacate and remand for further proceedings.1 Spears v. McCotter , 766 F.2d 179 (5th Cir. 1985).

2 BACKGROUND

Nugent, a Texas state prisoner, filed a civil rights complaint against Sheriff

Dale Myers, Jail Administrator Sam Presswood, the Walker County

C ommissioners, and the medical staff of the Walker County Jail, alleging deliberate

indiffe rence to serious medical needs in violation of the eighth amendment.

Nugent contends that jail personnel failed to assess adequately his me d ical

condition when he en tered the facility, failed to treat properly his diabetic

condition, and were deliberately indifferent to his medical needs by exposing him

to tuberculosis and placing him in administrative segregat ion after he suffered a

diabetic seizure.

After Nugent responded to a questionnaire provided by the district court for

a more definite statement, the court ordered Jail Administrator Presswood served

with the complaint. Presswood moved for a Rule 12(b)(6) dismissal for failure to

state a claim and Nugent moved for summary judgment. The district court denied

the motions, and set a Spears 1 hearing. Prior to the S pears hearing, Presswood

moved for summary judgment, submitting copies of Nugent’s prison and medical

records in support. The court did not entertain the motion, but considered the

prison and medical records at the Spears hearing. After questioning Nugent, a2 Although Nugent named the Walker County Commissioners in his complaint, the

record reveals tha t the district court construed this party as the Walker County

Commissioners Court, which is the appropriate entity in such a suit. Tex. Local Govt. Code

§ 351.001.

3 representative for the defendants, and defense counsel at the hearing, the court

dismissed Nugent’s complaint against all named defendants for failure to state a

claim. 2

Nugent timely appealed, and the case was docketed with this court as No. 97-

20032. The appeal was subsequently dismissed, however, for failure to pay the

filing fee. Thereafter, Nugent filed a second notice of appeal, along with a motion

to proceed in forma pauperis

, which was docketed as the instant appeal. The

district court authorized Nugent to appeal in forma pauperis

, a ssessing an initial

partial filing fee, and the parties filed briefs. Proper procedure dictates that Nugent

s hould have moved for reinstatement of the original appeal, not notice a second

appeal. Nevertheless, in an effort to conserve judicial resources given the state of

this appeal, we construe Nugent’s second notice of appeal as a motion to reinstate

the first appeal, grant the same, and entertain the merits under the i nstant docket

number.

ANALYSIS

Nugent contends that the district court erred in dismissing his complaint for3 Black v. Warren , 134 F.3d 732 (5th Cir. 1998).

4 Eason v. Holt , 73 F.3d 600 (5th Cir. 1996).

5 Id. at 601.

6 Estelle v. Gamble , 429 U.S. 97 (1976).

7 Texas law requires the county’s commissioners court to provide “safe and suitable

jails” and makes the county’s sheriff “keeper of the county jail.” Tex. Local Govt. Code §§

351.001 and 351.041.

4 failure to state a claim, asserting that the court should have (1) ordered service of

the complaint on all named defendants; (2) allowed discovery to obtain the names

of the jail medical staff; and (3) given him an opportunity to amend his complaint

to include claims against the defendants in their individual capacities.

We review a § 1915(e)(2)(B)(ii) dismissal under the same de novo standard

employed to review Rule 12(b)(6) dis missals. 3 All well pleaded averments are

accepted as true and viewed in the light most favorable to the plaintiff. 4 “Dismissal

is not proper unless it appears, based solely on the pleadings, that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.” 5

To establish an eighth amendment denial of medical care claim, a prisoner

must allege that prison officials were deliberately indifferent to his serious medical

needs. 6 To be liable under section 1983, a sheriff or the county’s commissioners

court 7 must be either personally involved in the acts causing the depri vation of8 See Lozano v. Smith , 718 F.2d 756 (5th Cir. 1983).

5 constitutional r ights, or there must be a causal connection between the

constitutional deprivation and a jail policy or the breach of an affirmative duty

imposed by state law. 8

According to Nugent’s pleadings and sworn testimony at the Spears hearing,

he complained of a diabetic condition upon entering the Walker County Jail, but

jail officials failed to assess his medical condition and no treatment was rendered.

Nugent contends that despite numerous complaints about health problems, he was

not taken to the hospital for tests until seve r al months after he was incarcerated.

When his blood-sugar level had risen to 968 and he suffered from high blood

pressure, Nugent contends he was placed in administrative segregation instead of

a requisite medical facility. Nugent asserts that jail officials were deliberately

indifferent to his medical needs when they in t entionally exposed him to

tuberculosis despite his known diabetic condition.

Based on these facts, Nugent alleges that the medical intake policy and

procedures at the jail are inadequate and deliberately indifferent to his medical

needs, and the defendants breached their duty of keeping the jail safe. He also

alleges that his subsequent medical treatment was inadequate and deliberately

indifferent to his serious medical needs, resulting in his exposure to tuberculosis9 Although the record reflects that the defendants’ representative had been previously

sworn, there is no indication that defense counsel was ever placed under oath.

10 Williams v. Luna , 909 F.2d 121 (5th Cir. 1990); Norton v. Dimazana , 122 F.3d

286 (5th Cir. 1997).

11 Norton , 122 F.3d 286; Wilson v. Barrientos , 926 F.2d 480 (5th Cir. 1991).

12 Eason , 73 F.3d 600.

6 and in him becoming an insulin dependen t diabetic which he previously had not

been.

In dismissing the c omplaint for failure to state a claim, the district court

relied on Nugent’s prison and medical records, as well as the unsworn testimony

of defense counsel. 9 Although district court’s have broad discretion in conducting

Spe ars hearings, the use of prison and medical records to counter a plaintiff’s

testimony is inappropriate. 10 In a S pears hearing, the district court may make only

limit e d credibility determinations, witnesses should be sworn, appropriate crossexamination should be allowed, and documents should be properly identified and

authenticated. 11

In the case at bar, one of the witnesses was not sworn, no cross-examination

was permitted, and pr ison and medical records were erroneously used to refute

Nugent’s testimony. In discounting Nugent’s allegations, the district court failed

to accept as true, as it must, the complaint’s well-pleaded or articulated facts. 1 213 Wilson, 926 F.2d 480; Eason , 73 F.3d 600.

7 From the record before us we are unable to conclude that Nugent can prove no set

of facts in support of his claim which would entitle him to relief. 13 Dismissal of the

complaint therefore was improper.

APPEAL REINSTATED; judgment appealed is VACATED and the matter

is REMANDED for further proceedings consistent herewith.