     Case: 15-20766      Document: 00514077064         Page: 1    Date Filed: 07/18/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                          United States Court of Appeals

                                    No. 15-20766
                                                                                   Fif h Circuit

                                                                                 FILED
                                  Summary Calendar                           July 18, 2017
                                                                            Lyle W. Cayce
DAVID W. LAND,                                                                   Clerk


                                                 Plaintiff-Appellant

v.

SHERIFF TOMMY GAGE; LIEUTENANT MYRICK; MONTGOMERY
COUNTY SHERIFF’S OFFICE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-2607


Before PRADO, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       David Wayne Land, Texas prisoner # 1915216, appeals the district
court’s denial of his motion to alter the judgment dismissing his 42 U.S.C.
§ 1983 civil suit for failure to exhaust and failure to state a claim upon which
relief could be granted. In his complaint, Land raised deliberate indifference




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-20766

and unconstitutional conditions of confinement claims. Land has also moved
this court for the appointment of counsel.
      Although exhaustion is mandatory under the Prison Litigation Reform
Act, the Supreme Court held in Jones v. Bock, 549 U.S. 199, 211-13 (2007), that
exhaustion is an affirmative defense that must be pleaded by the defendant.
Courts may not require that prisoners affirmatively plead or demonstrate
exhaustion. Id. at 213-14, 216. A district court may still “dismiss a case prior
to service on defendants for failure to state a claim, predicated on failure to
exhaust, if the complaint itself makes clear that the prisoner failed to exhaust.”
Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). However, courts may not
sidestep Jones by local rule requiring prisoners to plead exhaustion.           Id.
      Here, the court relied on Land’s response to a question on a form
complaint, which asked whether he had exhausted all steps of the institutional
grievance process. Land replied “No,” and his complaint is otherwise silent as
to exhaustion, although he raised various points in his appellate brief in
support of an argument that exhaustion was excused. We have held that
reliance on information elicited by such a form complaint effectively put the
onus on Land to affirmatively plead and demonstrate exhaustion, contrary to
Jones and Carbe. See McDonald v. Cain, 426 F. App’x 332, 333-34 (5th Cir.
2011); Torns v. Miss. Dep’t of Corrs., 301 F. App’x 386, 389 (5th Cir. 2008).
      A prisoner’s civil rights complaint may be dismissed at any time if it fails
to state a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii);
28 U.S.C. § 1915A(b)(1). We review de novo the district court’s dismissal of
Land’s civil rights complaint for failure to state a claim under § 1915A(b), using
the same standard applicable to dismissals under Federal Rule of Civil
Procedure 12(b)(6). See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).




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                                  No. 15-20766

      Before dismissing a pro se litigant’s case for failure to state a claim, a
district court ordinarily must give the litigant an opportunity to amend his
complaint to remedy the deficiencies, which is primarily done by conducting a
hearing under Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), or
requesting a more definite statement through a questionnaire.            Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994). The district court erred by dismissing
Land’s pro se complaint without doing so. See Bazrowx v. Scott, 136 F.3d 1053,
1054 (5th Cir. 1998). Accordingly, we consider whether Land’s “allegations, if
developed by a questionnaire or in a Spears dialog, might have presented a
nonfrivolous section 1983 claim.” Eason, 14 F.3d at 9. If, “[w]ith further
factual development and specificity” his “allegations may pass . . . muster,” we
will remand to give him “an opportunity . . . to offer a more detailed set of
factual claims.” Id. at 10.
      We conclude that had he been given the opportunity to properly develop
his claims, Land could have alleged sufficient facts to state a claim of deliberate
indifference that was at least plausible on its face. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); cf. Whitley v. Hanna, 726 F.3d 631, 640-41 (5th Cir. 2013);
Alexander v. Tippah Cnty., Miss., 351 F.3d 626, 631 (5th Cir. 2003).
Specifically, Land contends that jail officials were aware of his harassment by
another inmate, against whom Land had offered to testify, and that he suffered
both psychological and physical harm as a result, but officials took no steps to
move him as requested. Instead, they kept Land in the neighboring cell as
“bait” in the hopes of eliciting incriminatory information from the other
inmate. Regardless whether Land can ultimately prevail on the merits of his
claims, the facts alleged are not “fantastic or delusional,” nor are the legal
theories of liability asserted “indisputably without merit.” See Eason, 14 F.3d
at 9 n.5 (internal quotation marks and citation omitted).



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                                No. 15-20766

      Accordingly, the district court’s judgment dismissing Land’s complaint
for failure to exhaust and failure to state a claim upon which relief could be
granted is VACATED, and this case is REMANDED for further proceedings
consistent with this opinion. Land’s motion for the appointment of counsel is
DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      VACATED AND REMANDED; MOTION DENIED.




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