               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 95-40715
                        (Summary Calendar)




MICHAEL J. FRISCHENMEYER,

                                             Plaintiff-Appellant,

                                versus


PAUL W. BOONE, Sheriff
Cass County, Tx; MERLE HUFFMAN,
Sheriff’s Capt. Cass County Jail;
NEAL BIRMINGHAM, Criminal D.A. of
Cass County, Tx; ALAN POWELL, In
his official Capacity as Deputy
Sheriff, Cass County Sheriff’s
Dept.; JAMES BLAIN, Deputy Cass
County Sheriff’s Department,

                                             Defendants-Appellees.



          Appeal from the United States District Court
                for the Eastern District of Texas
                          (2:94-CV-169)


                            April 17, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*


     Plaintiff-Appellant    Michael   J.   Frischenmeyer,   a   pretrial

detainee in the Cass County, Texas, jail, appeals the dismissal as



    *
       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this opinion should not be published and is not precedent except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.
frivolous pursuant to 28 U.S.C. § 1915(d) of some of his civil

rights claims under 42 U.S.C. § 1983, and the dismissal of other

§ 1983 claims in the partial summary judgment granted by the

district court in favor of a number of the defendants.         We affirm

all of the district court’s dismissals except the one disposing of

Frischenmeyer’s claim that he was punished, in violation of the Due

Process Clause, when he was left chained in the detox facility of

the jail for five days.   That one we vacate and remand for further

proceedings.

                                 I

                      FACTS AND PROCEEDINGS

     Frischenmeyer filed this civil rights action against Paul

Boone, the Sheriff of Cass County; Captain Merle Huffman, a deputy;

Neal Birmingham, the District Attorney; Allen Powell and Jim Blain,

his jailers; and all personnel at the Cass County Jail.1        In his

complaint and at a hearing held pursuant to Spears v. McCotter, 766

F.2d 179, 181-82 (1985), Frischenmeyer raised a plethora of issues,

both initially and subsequently.      We have carefully reviewed the

record and the arguments of the parties and find none meriting

discussion or further consideration on appeal, save only the one

regarding being held in chains in the detox facility, which we now

address.

     Frischenmeyer   alleges   that   he   was   placed   in   solitary

confinement on September 21, 1994; and, upon his release from such



        Frischenmeyer was confined in the jail from August 1994,
until February 1995.

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confinement on October 7, 1994, was returned to the cellblock in

which two inmates who had allegedly attacked him were housed.

Frischenmeyer asserts that after he threatened to commit suicide if

he were left in the cellblock with his alleged attackers, Captain

Huffman ordered that he be taken to detoxification, put in belly

chains, leg irons, and drag chains, and made to sleep on the floor

in chains without a mattress or blanket.       He further alleges that

he was left in that condition for five days, which he classifies as

a due process violation.      At some point, he alleges, Huffman

changed her mind and ordered the guards to take off the chains, but

the Sheriff ordered that the chains be put on again.      In an amended

complaint, Frischenmeyer added claims that, inter alia, he was

placed in detox without a hearing and was removed from detox and,

without a hearing, again placed in solitary confinement but without

a loss of privileges.

         Frischenmeyer consented to proceed before the magistrate

judge.

     The remaining defendants filed a motion to dismiss, supported

by affidavits and exhibits, pursuant to Fed. R. Civ. P. 12(b)(6),

noting that their motion should be treated as one for summary

judgment. Huffman, Powell, and Blain made a number of assertions in

their summary judgment motion, and Huffman added that jail records

indicate    that   Frischenmeyer   was     placed   in   administrative

segregation on September 23, 1994, for his own protection, and not

to punish or discipline him.           Unfortunately, Huffman did not

mention Frischenmeyer’s placement in detox in chains.


                                   3
      Frischenmeyer filed a "Motion to Strike Defendants [sic]

Motion to Dismiss for Failure to State a Claim upon Which Relief

May Be Granted." The magistrate judge properly treated this motion

as Frischenmeyer's response to the defendants' motion for summary

judgment because it contained materials outside of the pleadings.

     Frischenmeyer does not challenge the criteria for placing

pretrial   detainees   in    jail   cells    or   the   general    practices

concerning pretrial confinement.         His claims are based on episodic

acts by Huffman, Powell, and Blaine; therefore, the subjective

deliberate indifference standard of Farmer v. Brennan, 114 S.Ct.

1970 (1995), applies.       See Hare v. City of Corinth, 74 F.3d 633,

643 (5th Cir. 1996) (en banc).

     Frischenmeyer contends that he threatened suicide and asked to

be returned to a segregated cell because, upon his earlier release

from segregation, Huffman had ordered that he be placed in cell

number 156 with one or two of his alleged attackers.              Instead of

placing him in cell number 163, as he requested, he was taken to

the "detox" tank because of his the suicide threat.          According to

Frischenmeyer, he spent five days sleeping on the floor in leg

irons, handcuffs, belly chain, and drag chain.          The question thus

presented is whether Huffman punished Frischenmeyer by placing him

in detox in chains for five days.

      The magistrate judge stated that the "[o]fficials in the

present case acted responsibly to protect the plaintiff from

himself," and that Frischenmeyer's due process rights were not

triggered because he "was placed in the detoxification tank for his


                                     4
own protection, as opposed to a punitive measure."         The magistrate

judge dismissed this claim as frivolous without inquiring further

concerning Frischenmeyer's allegations that he was placed in chains

for five days. Although it is not absolutely clear, the magistrate

judge appears to have dismissed this claim under § 1915(d).

         Frischenmeyer's allegations that Huffman and the Sheriff

punished him in the detox/chains incident, in violation of the Due

Process Clause, are not "fanciful, fantastic, and delusional." See

Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).            The magistrate

judge's    characterization     of   the     official   conduct   granting

Frischenmeyer's request to place him in a protected cell may have

been inaccurate.     There is no indication that Frischenmeyer had

known suicidal tendencies. See Rhyne v. Henderson County, 973 F.2d

386, 391 (5th Cir. 1992).       Given the allegations of a previous

attack     on   Frischenmeyer    and       severe   resulting     injuries,

Frischenmeyer's suicide threat may have been his own hyperbole

uttered out of concern for being housed once more with his alleged

attackers.      Even if the placement in a protected cell was a

response to the suicide threat, though, that does not explain why

Huffman and the Sheriff authorized placing Frischenmeyer in chains.

     At the Spears hearing, the magistrate judge stated that he

would have the Sheriff and Huffman answer regarding the placing of

Frischenmeyer in detox in chains; however, the magistrate judge

does not appear to have had the Sheriff answer.             Further, the

magistrate judge permitted Frischenmeyer to proceed on the due

process claims against Huffman; however, she limited her response


                                     5
to the issue of placing Frischenmeyer in isolation and failed to

address the detox/chains incident. As a further development of the

facts through a response by the defendants was called for, we are

left with no choice but to conclude that the magistrate judge

abused his discretion in dismissing this claim as frivolous under

§ 1915(d).

     Accordingly, we vacate the dismissal of Frischenmeyer's claim

concerning his confinement in detox in chains and remand for

further proceedings. The magistrate judge's dismissal of all other

claims that Frischenmeyer asserted is affirmed.   See Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987).

AFFIRMED in part, VACATED and REMANDED in part.




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