   Case: 10-10824       Document: 00511509303          Page: 1    Date Filed: 06/15/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 15, 2011
                                     No. 10-10824
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




BOBBY ZIDELL,

                                                   Plaintiff-Appellant,

versus

GORDEN KANAN, M.D.; BUTCH TUBERA, M.D., C.D.; EDDIE QUEZA;
MIKE KESSLER; WILFREDO FELICIANO,

                                                   Defendants-Appellees.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 4:10-CV-106




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Bobby Zidell, federal prisoner # 16228-077, appeals the dismissal of his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-10824            Document: 00511509303        Page: 2   Date Filed: 06/15/2011

                                           No. 10-10824

Bivens1 action pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim
upon which relief may be granted. Zidell complains that the defendants exhibit-
ed deliberate indifference to his health and safety in violation of the Eighth
Amendment. He also appeals the denial of his request for a preliminary injunc-
tion and temporary restraining order.
          We review de novo the dismissal of a lawsuit pursuant to § 1915A, apply-
ing the same standard used for dismissals under Federal Rule of Civil Procedure
12(b)(6). Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998); Bazrowx v.
Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). “Generally a district court errs in dis-
missing a pro se complaint for failure to state a claim under Rule 12(b)(6) with-
out giving the plaintiff an opportunity to amend.” Bazrowx, 136 F.3d at 1054.
Where a district court has dismissed a pro se complaint without opportunity to
amend, we consider whether the plaintiff’s “allegations, if developed by a ques-
tionnaire or in a Spears2 dialogue, might have presented a nonfrivolous . . .
claim.” Id. If, “[w]ith further factual development and specificity” the plaintiff’s
“allegations may pass . . . muster,” we will remand for the prisoner to have “an
opportunity . . . to offer a more detailed set of factual claims.” Eason v. Thaler,
14 F.3d 8, 10 (5th Cir. 1994).
          To state a claim for unconstitutional denial of medical treatment, a con-
victed prisoner must show that the medical care was denied or delayed and that
the denial or delay constituted deliberate indifference to his serious medical
needs. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). A prison official
acts with deliberate indifference “only if he knows that inmates face a substan-
tial risk of serious harm and [he] disregards that risk by failing to take reason-
able measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). A



          1
              Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
          2
              Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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                                    No. 10-10824

“plaintiff must show that officials refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct that
would clearly evince a wanton disregard for any serious medical needs.” Domino
v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001) (internal quo-
tation marks and citation omitted).
      Although Zidell makes allegations of negligence, which do not constitute
an Eighth Amendment violation, he also claims that the defendants “intention-
ally ignored his repeated requests for medical care or ignored a medical order to
be in a wheelchair room.” He further contends that as a result of the defendants’
actions, he suffered with a fractured foot for two months and developed problems
with his right foot that may lead to amputation of a toe. Liberally construed, Zi-
dell’s allegations present a viable claim of deliberate indifference to his serious
medical needs. See Farmer, 511 U.S. at 847; Domino, 239 F.3d at 755; see also
Thompkins v. Belt, 828 F.2d 298, 301 (5th Cir. 1987). Given that the district
court never afforded Zidell an opportunity to amend his complaint or conduct a
Spears hearing, the court abused its discretion in dismissing Zidell’s action for
failure to state a claim upon which relief may be granted. See Bazrowx, 136 F.3d
at 1054; Parker v. Forth Worth Police Dep’t, 980 F.2d 1023, 1025-27 (5th Cir.
1993).
      Thus, the judgment dismissing Zidell’s Bivens action is VACATED and
REMANDED for further proceedings. Because the district court’s decision deny-
ing injunctive relief rests on its conclusion that Zidell failed to state a claim, that
issue is also VACATED and REMANDED. The denial of a temporary restrain-
ing order is not appealable, so the appeal as to that matter is DISMISSED. See
In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990). We express no view on how the dis-
trict court should rule on remand.




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