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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

July 24, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60495

Summary Calendar

CARL PORTER,

Plaintiff-Appellant,

versus

MARILYN HEMPHIL, Correctional Officer IV, in her individual

capacity; KINTRELL LIDDELL, Medical Director, in his individual

capacity; Doctor JOHN BEARRY, Medical Director, in his individual

capacity; Doctor THOMAS LEHMAN, Medical Doctor, in his individual

capacity; KERRIN FLOWERS, Nurse, in her individual capacity,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:06-CV-7

--------------------

Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

Carl Porter, Mississippi prisoner # R7051, filed a motion to

proceed in forma pauperis (IFP) on appeal challenging the

district court’s certification that his appeal was not taken in

good faith pursuant to Baugh v. Taylor, 117 F.3d 197 (5th Cir.

1997). His motion for appointment of counsel is denied. 

Porter argues that the district court erred in dismissing

his complaint. He argues that the defendant Hemphil acted with
No. 06-60495

-2-

deliberate indifference to his medical needs and that the

district court should have given him the opportunity to amend his

complaint if it was deficient. He also argues that he attempted

to exhaust all administrative remedies. This court’s inquiry

into Porter’s good faith “is limited to whether the appeal

involves ‘legal points arguable on their merits (and therefore

not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983)(citation omitted). 

Porter argues on appeal that his claim against Medical

Directors Bearry and Liddell is limited to their failure to send

him to a specialist and to change his pain medication. He admits

that they did not deny him medical treatment. Porter’s

allegation of disagreement with these doctors’ medical treatment

of his condition is not sufficient to state a claim against

Bearry and Liddell. See Varnado v. Lynaugh, 920 F.2d 320, 321

(5th Cir. 1991).

If Porter’s allegations against the defendant Hemphil are

accepted as true, they were sufficient to state a claim of

deliberate indifference. See Ashe v. Corley, 992 F.2d 540, 544

(5th Cir. 1993). The district court prematurely dismissed the

claim against Hemphil without a further factual development of

the underlying facts. See Eason v. Thaler, 19 F.3d 8, 9-10 (5th

Cir. 1994).

In light of a recent Supreme Court opinion, the district

court also erred in dismissing the claims against Dr. Lehman and
No. 06-60495

-3-

Nurse Flowers for failure to exhaust administrative remedies

because the lack of exhaustion is an affirmative defense that

need not be pleaded in a prisoner’s complaint and Porter’s

complaint did not establish a failure to exhaust. See Jones v.

Bock, 127 S. Ct. 910, 920-21 (2007); Aquilare-Avellaveda v.

Terrell, 478 F.3d 1223, 1225-26 (10th Cir. 2007). Porter’s

allegations that Lehman and Flowers deliberately caused him

unnecessary pain were sufficient to state a claim of deliberate

indifference. 

Because Porter has raised nonfrivolous claims against

Hemphil, Lehman, and Flowers, his appeal has arguable merit. His

motion to proceed IFP is granted, the judgment of the district

court with respect to those defendants is vacated and the case is

remanded for further proceedings. The judgment is affirmed with

respect to the dismissal of the claims against Doctor Bearry and

Doctor Liddell.

IFP GRANTED; APPOINTMENT OF COUNSEL DENIED; JUDGMENT

AFFIRMED IN PART, VACATED IN PART; CASE REMANDED.