*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-50819

Summary Calendar

 

LARRY DON TILLIS,

Plaintiff-Appellant,

versus

TERRY FOSTER, WARDEN; JOY STOUT, LVN;

W.A. HOWELL; DAYLE LANCASTER; RICHARD

BARKLEY; STEVEN JEFFCOAT; LOUIS WARFIELD;

RONALD JORDAN; STEPHEN CAPERS,

Defendants-Appellees.

 

Appeal from the United States District Court for the

Western District of Texas

(P-95-CV-57)

 

July 26, 1996

Before GARWOOD, WIENER and PARKER, Circuit Judges.*

PER CURIAM:

Plaintiff-appellant Larry Don Tillis (Tillis), a Texas

prisoner proceeding pro se and in forma pauperis, appeals the

dismissal under 28 U.S.C. § 1915(d) of his 42 U.S.C. § 1983 suit

against various Texas Department of Criminal Justice personnel.
 

1See also Sandin v. Conner, 115 S.Ct. 2293, 2297-2300 (1995).

2

The dismissal of the complaint insofar as it complained of a

lack of proper medical care was clearly proper for the reasons

given by the magistrate judge and the district court. The detailed

allegations of the complaint negate the requisite deliberate

indifference and have no tendency to show more than at most mere

negligent, mistaken, and/or unsuccessful treatment or diagnosis.

Graves v. Hampton, 1 F.3d 315, 319-20 (5th Cir. 1993); Varnado v.

Lynaugh, 920 F.2d 278, 284 (5th Cir. 1990). Similarly, the claim

that Tillis’ sentence did not allow for hard labor was properly

dismissed as frivolous. See Wendt v. Lynaugh, 841 F.2d 619, 620

(5th Cir. 1988).

However, neither the magistrate judge nor the district court

addressed Tillis’ claim again defendants Jordan, Capers, Barkley,

and Jeffcoat relating to their forcing him to work, or disciplining

him for not doing so, notwithstanding his back injury, which was

aggravated thereby. These allegations arguably implicate a

possible claim under the theory of Jackson v. Cain, 864 F.2d 1235

(5th Cir. 1989). Moreover, while a Jackson v. Cain-type claim may

not be fully pleaded in these portions of Tillis’ complaint, see

Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994),1 nothing in the

complaint is inconsistent with, or suggests that Tillis could not

properly plead, such a claim, and Tillis was not sent a

questionnaire, did not have a hearing under Spears v. McCotter, 766

F.2d 179 (5th Cir. 1985), and was not afforded an opportunity to

amend his complaint, which was dismissed with prejudice. Under all
3

these circumstances, we conclude that the section 1915(d) dismissal

of these claims against Jordan, Capers, Barkley, and Jeffcoat was

premature. See Eason v. Thaler, 14 F.3d 8 at 9-10 (5th Cir. 1994).

Of course, further development of the allegations in this respect

may reflect that these claims, too, are properly dismissable under

section 1915(d). See id.

Accordingly, we affirm the dismissal of all claims except

those above referenced against Jordan, Capers, Barkley, and

Jeffcoat; as to the latter said claims, the dismissal is vacated

and the cause is remanded for further proceedings not inconsistent

herewith.

AFFIRMED in part; VACATED and REMANDED in part.