### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10765 Summary Calendar

ROBERT WALTER BONNER, Plaintiff-Appellant

v. BOB ALFORD, Johnson County Sheriff, Defendant-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:10-CV-2556

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges PER CURIAM: * Robert Walter Bonner, Texas prisoner # 156166 2 , m o v es for leave to proceed in forma p a u p e ris (IFP) to appeal the district court’s sua sponte dismissal as frivolous of his 42 U. S

. C

. § 1983 complaint. Bonner’s motion is a challenge to the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). For the reasons detailed below, Bonner’s motion for IFP is GRANTED. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D April 24 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-10765 Document: 00511832577 Page: 1 Date Filed: 04/24/2012No. 11-10765

In his complaint, Bonner alleged that Sheriff Alford viol a t e d h i s due proce s s r i gh ts when, without a hearing, he was placed in administrative segregation and was required to wear a shock belt during trial. Bonner contends that the distric t c o u r t ’s determination that the restraints were reasonably related to Sheriff Alford’s interest in maintaining order and security is not supported by the record. He asserts that there w a s n o e vi d ence that he was a threat to security so as to engender these restrictions. Because the district court dism i ssed Bonner’s complaint as frivolous, pursuant to both 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), our review is de novo. See Geiger v. Jowers , 404 F.3d 371, 373 (5th Cir. 2005). The Due Process Clause of the Fourteenth Amendment protects pretrial detainees from being subjected to conditions of c o nfinement that constitute punishment. Bell v. Wolfish , 441 U.S. 520, 535 (1979). The Bell test applies “when a pr e t r ial detainee attacks general conditions, practic e s , rul e s , o r r e s trictio n s of p r e tri al confinement.” Hare

v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996) (en banc). If a pretrial detainee bases his cl a i m u pon a jail official’s “episodic acts or omissions,” the standard of subjective deliberate indifference enunciated in Farmer v. Brennan , 511 U.S. 825 (1994), is the measure of culpability. Id

. The district court dismissed the suit on the basis of B o nner’s complaint, which included his prison grievance and a short excerpt from h i s state trial proceedings where the trial court ex p lained to defense counsel why additional security personnel were present in the courtroom. Although Bonner s tated in his grievance that he had b e e n “told” that he was placed in administrative segreg a t ion because he was a security threat to the jail, the excerpt from his trial testimony contains no discussion relating to any need for Bonner to be held in admini strative segregation. There is no evidence in this limited record indicating that Bonner committed any offenses or infractions or otherw i s e engaged in a n y behavior that posed a threat to security so as to justify his placement in administrative segregation. Though the district court, apparently
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drawin g from the trial court’s comments regarding security measures at trial, also found that Bonner’s plac e m e nt in a d mini s tr ative s e gr e gation may have been necessitated by a “threat of danger” to Bonner while in jail, the district court’s reliance on those comments was misplace d

. The trial court’s comments were directed at the disruptive behavior of audience members during trial and were not related to any threats against Bonner while in jail. On this record, there was
no indication that Bonner had been threatened with harm while in jail so as to necessitate his placement in administrative segregation on that basis. The distric t c ourt’s finding that the utilization of the shock belt was reasonably related to Sheriff Alford’s interest in maintaining security and order is similarly unsupported by the current record. A fair reading of the state trial court colloquy reveals that there was no discussion, and the trial court stated no reasons, as to why Bonner was fitted with a shock b e l t , only that he wore one. T h e trial court’s comments focused on the obstreperous behavior of audience members, not on any disobedient or disorderly conduct on the part of Bonner. As t he record currently stands, the district court erred in dismissing Bonner’s complaint. The district court’s dismissal is VACATED, and the matter is REMANDED for further proceedings. Whether the facts ultimately establish

a due process violation i s n o t a q uestion to be answered at this stage of the proceedings. See Howard v. King , 707 F.2d 215, 220 (5th Cir. 198 3).

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