                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                June 21, 2005

                                                       Charles R. Fulbruge III
                                                               Clerk
                            No. 04-20343



                          GEORGE V. FULLER,

                                              Plaintiff-Appellant,


                               VERSUS


                           HARRIS COUNTY,

                                               Defendant-Appellee.




           Appeal from the United States District Court
                For the Southern District of Texas
                            (04-CV-633)



Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

      Appellant George V. Fuller, a former prisoner of Harris

County, filed suit in district court, alleging constitutional and

civil rights violations under 42 U.S.C. §§ 1981 and 1983 with

regard to Harris County’s alleged deliberate indifference to his

serious medical needs, the result of which was the amputation of

his leg above the knee.    The district court issued an opinion in


  *
   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opinion should not be published and is not precedent except under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.
which it determined Fuller was not entitled to relief.                   The

district court thereafter entered final judgment against Fuller.

Fuller filed a motion for a new trial, which the district court

summarily denied. Fuller timely filed the instant appeal. For the

reasons set forth below, we VACATE the district court’s dismissal

order and REMAND for further proceedings.

                   BACKGROUND & PROCEDURAL HISTORY

      Fuller was a prisoner of Harris County when, on July 25, 2003,

while participating in recreational activities at the prison, he

sustained a dislocated knee cap.        Fuller was taken to LBJ Hospital

in Houston, Texas.    The hospital placed him in a knee stabilizer

and told him to return to the hospital on July 31, 2003, for

surgery.   Fuller was not taken to the hospital for the prescribed

procedure until August 19, 2003, despite the fact that he filed

repeated sick call requests with officials at the jail beginning on

July 31, 2003.

      Following the surgery, Fuller was told by the hospital to

return in 10-14 days for a post-operative examination.            According

to Fuller, he notified Dr. Porse in the jail clinic on September 4,

2003, 16 days after the surgery, that he was to be returned to the

hospital for the scheduled follow-up.           Dr. Porse examined Fuller

and   observed   swelling   in   the    knee.      Dr.    Porse   prescribed

antibiotics and sent Fuller back to his cell.            The following day,

Fuller noticed “a reddish drain” from the knee and informed the



                                    2
duty nurse.      According to Fuller, however, it wasn’t until the

fourth day after the drainage was first observed that he received

a shot from the jail clinic.    On September 9, 2003, Fuller was sent

to the hospital where he underwent emergency surgery.

     Fuller alleged that he received two operations and then

demanded a second opinion at another hospital, which was denied.

He also alleged that he asked a guard to obtain a form so that he

could refuse further treatment, but that a doctor at the hospital

had left specific instructions not to let him sign a refusal.

According to Fuller, on September 12, 2003, he submitted to yet

another surgery because he was under sedation and because he was

previously denied a request to go to another hospital.                Fuller’s

leg was then amputated above the knee.                  He was subsequently

released from custody on November 10, 2003.

     Fuller filed suit in district court, asserting constitutional

rights violations under the Eighth and Fourteenth Amendments, and

civil   rights    violations   under       28   U.S.C   §§   1981   and   1983.

Specifically, Fuller alleged that his injuries were the result of

Harris County’s deliberate indifference and gross negligence in

responding to his immediate serious medical needs.               The district

court issued a brief opinion denying Fuller relief in which it

found that “[t]he objective data show[ed] no lapse of care,” and

further determined that “[s]ince he had drugs and surgeries fit to

his needs, no neglect or indifference appears.”              In its concluding

sentence, the district court held that Fuller could “not sue under

                                       3
the Constitution’s requirement for regular, national government

processes.”     The district court entered judgment against Fuller,

who then filed a motion for a new trial, which the district court

summarily denied.     Fuller timely filed the instant appeal.

                               DISCUSSION

       It is unclear from its order whether the district court

dismissed Fuller’s claim as being frivolous or for its failure to

state a claim on which relief may be granted.          In the absence of

such an express basis, we evaluate Fuller’s complaint under both

grounds for dismissal.

       We review a district court’s determination that a complaint is

frivolous for an abuse of discretion.        Martin v. Scott, 156 F.3d

578, 580 (5th Cir. 1998) (per curiam).      A complaint is frivolous if

it lacks an arguable basis in law or fact, such as when a prisoner

alleges a violation of a legal interest that does not exist.          Id.

A complaint lacks such a basis if it relies on an indisputably

meritless legal theory.      Taylor v. Johnson, 257 F.3d 470, 472 (5th

Cir.   2001).    We   must   determine,   therefore,   whether   Fuller’s

complaint sets forth facts that, taken together, assert a legally

cognizable claim.

       Alternatively, we review de novo a district court’s dismissal

for failure to state a claim on which relief can be granted.

Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).

This Court will affirm an order dismissing an action only if it



                                    4
appears that no relief could be granted under any set of facts that

could be proven consistent with the allegations.             Clay v. Allen,

242 F.3d 679, 680 (5th Cir. 2001) (internal quotations omitted).

     In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court

addressed the rights of prisoners under the Eighth Amendment.                The

Court   held   that   “[r]egardless       of   how   evidenced,    deliberate

indifference to a prisoner’s serious illness or injury states a

cause of action under § 1983.”            Id. at 104; see also Lawson v.

Dallas County, 286 F.3d 257 (5th Cir. 2002) (affirming a district

court’s award for damages under § 1983 to paraplegic inmate who

alleged prison officials were deliberately indifferent to his

serious medical needs).

     Based on a review of Fuller’s complaint, we conclude that it

does not rely on an indisputably meritless legal theory.             Although

not artfully drafted, Fuller argues his Eighth Amendment right to

be free from cruel and unusual punishment was violated when prison

officials delayed in securing him the necessary medical services.

Fuller specifically sets forth facts relating to his medical care

(or alleged lack thereof) that give rise to an actionable claim.

First, Fuller cites the 19-day span in which he argues his surgical

operation, originally scheduled by the hospital, was delayed by

Harris County.   Fuller proceeds to detail how, following the first

surgical   procedure,   Harris   County        was   allegedly    dilatory   in

returning Fuller to the hospital for a scheduled re-examination.

It was during this delay, argues Fuller, that he began experiencing

                                      5
a “reddish drain” in and around his knee in addition to a fever

relating to the infection. Both of these conditions were allegedly

known by the jail clinic, yet, according to Fuller’s complaint,

they nevertheless refused to return Fuller to the hospital to be

examined.         Furthermore, in his statement of claims for relief,

Fuller specifically alleges:

      The policy, custom and practice by [Harris County]
      deprived plaintiff of his civil rights 42 USCA 1983, 1981
      (A), his constitutional rights under the 8th amendment
      and the 14th amendment, subjecting plaintiff to
      deliberate indifference and intentional gross negligence
      to his immediate serious medical need.

      We are not convinced that “no relief could be granted under

any   set    of    facts   that   could   be   proven    consistent      with   the

allegations.”        Clay, 242 F.3d at 680.           Without speaking to the

merits of his claim, we conclude that Fuller clearly states in his

complaint that Harris County was deliberately indifferent to his

serious medical needs.        By doing so, Fuller presented the district

court with a complaint containing alleged facts that, if taken as

true, state a claim that has an arguable basis in law and cannot on

its   face    be    deemed   frivolous.        Such   alleged    facts    require

development through the civil discovery process.                Accordingly, we

VACATE the district court’s dismissal of this action and REMAND the

case for further proceedings.

VACATED and REMANDED.




                                          6
