     Case: 17-30097      Document: 00514474442         Page: 1    Date Filed: 05/16/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                      No. 17-30097
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           May 16, 2018

RONALD GRAVES,                                                            Lyle W. Cayce
                                                                               Clerk
                                                 Plaintiff-Appellant

v.

BURL CAIN, in his individual capacity; RAY VITTORIO; UNKNOWN
CAZELOT, Colonel; DEREK JONES; JAMES M. LEBLANC; DARREL
VANNOY, in his official capacity,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:16-CV-292


Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Ronald Graves, Louisiana prisoner # 356003, moves for leave to proceed
in forma pauperis (IFP) on appeal from the dismissal of his 42 U.S.C. § 1983
complaint as frivolous and for failure to state a claim. The district court denied
Graves’s motion to proceed IFP and certified pursuant to 28 U.S.C. § 1915(a)(3)
and Federal Rule of Appellate Procedure 24(a)(3)(A) that the appeal was not
taken in good faith.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30097

      By moving to proceed IFP, Graves is challenging the district court’s
certification that the instant appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In evaluating whether the appeal is
taken in good faith, the relevant inquiry is “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) (internal quotation marks and citation
omitted).
      A prisoner’s IFP civil rights complaint “shall” be dismissed if, inter alia,
it is frivolous or fails to state a claim on which relief can be granted.
§ 1915(e)(2)(B)(i), (ii); 28 U.S.C. § 1915A(b)(1); see Morris v. McAllester, 702
F.3d 187, 189 (5th Cir. 2012). “This court reviews the dismissal of a civil rights
complaint as frivolous for an abuse of discretion.” Rogers v. Boatright, 709 F.3d
403, 407 (5th Cir. 2013). “A dismissal of a civil rights complaint for failure to
state a claim is reviewed de novo, using the same standard applicable to
dismissals under Federal Rule of Civil Procedure 12(b)(6).” Id.
      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
Graves’s pro se complaint without doing so. See Bazrowx v. Scott, 136 F.3d
1053, 1054 (5th Cir. 1998).      Accordingly, we consider whether Graves’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 . . .




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                                     No. 17-30097

muster,” we will remand to give him “an opportunity . . . to offer a more detailed
set of factual claims.” Id. at 10.
      We conclude that it is possible that, had Graves been given an
opportunity to properly develop his claims, the allegations, viewed in the light
most favorable to Graves, would have been sufficient 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). Regardless whether Graves 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 meritless.” Eason, 14 F.3d at 9 n.5
(internal quotation marks and citation omitted).
      In light of the foregoing and the fact that Graves has demonstrated that
he is financially eligible to proceed IFP, his motion for leave to proceed IFP is
GRANTED, the district court’s judgment dismissing his complaint as frivolous
and for failure to state a claim is VACATED, and this case is REMANDED for
further proceedings consistent with this opinion.




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