                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                             No. 95-10268

                            Summary Calendar
                         _____________________


          DAVID WILLIAM THOMPSON,

                                 Plaintiff-Appellant,

          v.

          DAVID WILLIAMS, ET AL.,

                                 Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                          (4:95-CV-066Y)
_________________________________________________________________
                          (May 19, 1995)
Before KING, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant David William Thompson appeals the

dismissal as frivolous of his civil rights complaint under 42

U.S.C. § 1983.    We affirm in part and vacate and remand in part.

     Proceeding pro se and in forma pauperis, Thompson, an inmate

serving a five-year sentence at the Tarrant County, Texas, jail,

filed a civil rights complaint against Tarrant County Sheriff


     *
      Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
David Williams and John Peter Smith Hospital, the medical

facility contracted to meet the medical needs of the county jail.

Thompson alleged that he had gum disease and seven rotten teeth.

He had seen the dentist three times since he was incarcerated

five months earlier, and the dentist had given Thompson

antibiotics and mouthwash.   The dentist told Thompson that he

needed to have his teeth pulled, but that the dentist was not

authorized to do that amount of work.   Thompson alleged that

Sheriff Williams would not transfer him to the Texas Department

of Criminal Justice (TDCJ) so that Thompson could receive the

necessary dental work.    For relief, Thompson requested transfer

to the medical floor, to be placed on the medical-transfer list

to TDCJ, or an order for the hospital to perform the necessary

dental work.

     Although the magistrate judge granted Thompson IFP status,

the district court ordered Thompson to show cause why he should

not pay a partial filing fee and to explain how the named

defendants were liable.   Thompson's IFP application indicated

that he had received from family $115 within the last five

months, although his prison account had a zero balance.    The

court noted that Thompson's complaint failed to allege a

constitutional violation.

     After Thompson filed his response to the district court's

order, the district court concluded that Thompson failed to

allege facts against the two named defendants and that,

regardless of who was named as defendant, Thompson's allegations


                                  2
amounted to no more than negligence or medical malpractice.

Although the district court did not require Thompson to pay a

partial filing fee, the court found that Thompson was capable of

paying a $20 partial filing fee.       The court ordered Thompson, if

Thompson filed another complaint in the Northern District of

Texas in the next six months, "to notify the judge presiding that

he has been required to pay a $20.00 partial filing fee in

subsequent suits."    The court noted that the presiding judge will

then be required to determine whether such a fee would deny

Thompson access to the courts.     The district court dismissed,

without prejudice, Thompson's complaint.

Dismissal as Frivolous

     Although not expressly stated, the district court dismissed

Thompson's complaint as frivolous under 28 U.S.C. § 1915(d).          See

Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).       An IFP

complaint may be dismissed as frivolous if it lacks an arguable

basis in law or fact.    Denton v. Hernandez, 112 S. Ct. 1728, 1733

(1992).    This court reviews for an abuse of discretion.     Id. at

1734.    Thompson argues that the failure of the medical staff to

treat his dental condition and the failure to arrange prompt

transfer to TDCJ, where he can receive the dental treatment,

amounts to cruel and unusual punishment.1

     1
      The district court held that Thompson failed to allege acts
by the named defendants for which they would be liable. Because
Thompson would be entitled to amend his complaint in order to
name proper defendants if he had raised a constitutional claim in
his pleadings, see Dayse v. Schuldt, 894 F.2d 170, 174 (5th Cir.
1990), the analysis proceeds under the assumption that Thompson
has named proper defendants in his complaint.

                                   3
     A claim under 42 U.S.C. § 1983 requires the plaintiff to

prove the denial of a federal right by a person acting under

color of state law.   See Daniel v. Ferguson, 839 F.2d 1124, 1128

(5th Cir. 1988).   "[D]eliberate indifference to a prisoner's

serious illness or injury states a cause of action under § 1983."

Estelle v. Gamble, 429 U.S. 97, 105 (1976).

          [A] prison official cannot be found liable
          under the Eighth Amendment . . . unless the
          official knows of and disregards an excessive
          risk to inmate health or safety; the official
          must both be aware of facts from which the
          inference could be drawn that a substantial
          risk of serious harm exists, and he must also
          draw the inference.

Farmer v. Brennan, 114 S. Ct. 1970, 1979 (1994).   "Under

exceptional circumstances, a prison official's knowledge of a

substantial risk of harm may be inferred by the obviousness of

the substantial risk."   Reeves v. Collins, 27 F.3d 174, 176 (5th

Cir. 1994).

     Although inartfully pleaded, Thompson alleged that the

dentist diagnosed the need for Thompson's teeth to be extracted,

dental surgery which the dentist was not authorized to perform.

Further, Thompson alleged that this required medical treatment is

not being provided, that he experiences a considerable amount of

suffering, and that the jail officials do not appear to be

arranging for the surgery or speeding up his transfer to a TDCJ

facility where Thompson can receive the needed medical work.2

     2
          We note that the response of the Tarrant County
Sheriff's Department to Thompson's grievance was to advise
Thompson to have his attorney move the state court to have
Thompson's name placed on the medical-transfer list.

                                 4
     "Under certain circumstances, allegations of deliberate

indifference may be shown when prison officials deny an inmate

recommended treatment by medical professionals."     Payne v.

Lynaugh, 843 F.2d 177, 178 (5th Cir. 1988); see Samuel v. Bowles,

No. 93-1072 at 5-8 (5th Cir. Oct. 22, 1993) (holding that

pretrial detainee has stated a claim under § 1983 of intentional

interference with prescribed medical treatment) (unpublished).

"[T]he facts underlying a claim of `deliberate indifference' must

clearly evince the medical need in question and the alleged

official dereliction."   Johnson v. Treen, 759 F.2d 1236, 1238

(5th Cir. 1985) (citation omitted).

     Arguably, Thompson has stated a claim of denial of medical

care under the Eighth Amendment which, with further factual

development, "may pass section 1915(d) muster."     Eason v. Thaler,

14 F.3d 8, 10 (5th Cir. 1994).   Thompson alleged that he has

received dental treatment three times since his incarceration and

that the dentist has prescribed antibiotics and mouthwash.

Further factual development, through the use of a Spears3 hearing

or a questionnaire, may reveal that the treatment of antibiotics

and mouthwash will maintain Thompson's dental condition until the

transfer to a TDCJ facility or the scheduling of the needed

surgery while incarcerated in the county jail.     See Mendoza v.

Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993) (district court using

inmate's medical records to conclude that inmate's claims of

delay of medical care and improper medical care were frivolous).

     3
      Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                 5
However, under the limited facts of the present record, the

district court abused its discretion in dismissing Thompson's

claim as frivolous.     See Eason, 14 F.3d at 10.   The district

court on remand should also allow Thompson to amend his complaint

to name the appropriate defendants.     See Dayse, 894 F.2d at 174.

     Thompson also argues that he is entitled to the dental

surgery under the Equal Protection Clause of the Fourteenth

Amendment because he is a U.S. citizen by birth.      In his

response to the court's show-cause order, Thompson contended that

if he could be physically moved to John Peter Smith Hospital,

            he would not be discriminated against and
            since he is a natualized [sic] born citizen
            he should have the same right to have proper
            medical attention while incarcerated because
            he can[no]t afford to hire an attorney to
            have him placed no [sic] the medical transfer
            list as recommened [sic] by grievance
            department.

It appears that Thompson is attempting to raise an equal

protection claim based on alleged discriminatory medical

treatment between incarcerated persons and indigent persons who

are not incarcerated.    The district court did not address

expressly this claim.    "The [E]qual [P]rotection [C]lause

mandates similar treatment of persons in similar situations."

Arceneaux v. Treen, 671 F.2d 128, 131 (5th Cir. 1982).      The

groups implicitly identified by Thompson are not similarly

situated.    Therefore, the equal protection claim is frivolous,

and its implicit dismissal by the district court is affirmed.

Court Order to Pay Partial Filing Fee in the Future



                                   6
     The district court imposed upon Thompson a requirement that

he pay a $20.00 partial filing fee in any suit he may file in the

Northern District of Texas in the next six months, from the date

of the court's order.   Thompson explains to this court that he

had no money in his prison account when he filed his complaint,

and the $115 he had received in the past five months, had been

spent on commissary supplies.   In light of Thompson's IFP status

in this suit and in light of liberal construction accorded pro se

writings, Thompson is contesting this prospective order of

partial payment.

     The district court did not rely upon Fed. R. Civ. P. 11 in

its order nor is its decision based on frivolousness.    Therefore,

the order is not a sanction.    In the district court's show-cause

and dismissal orders, the court looked at Thompson's economic

situation.   "The only determination to be made by the court" in

determining whether to grant leave to file an action IFP "is

whether the statements in the affidavit satisfy the requirements

of poverty."   Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976).

     The district court failed to identify by what authority it

can impose its prospective IFP determination, with a six-month

shelf life, on Thompson before Thompson has attempted to file any

subsequent complaint.   A review of the district court's local

rules does not disclose such authority.    See N.D. Tex. R. 12.1

(fees), 12.7 (applications to proceed IFP).   Although a district

court has discretion to determine, by examining an IFP

applicant's prison-account balance and considering regular


                                  7
periodic deposits to that account, whether the IFP applicant

should pay a partial filing fee for the case at hand, see Smith

v. Martinez, 706 F.2d 572, 573-74 (5th Cir. 1983), we have found

no authority for making such a determination for prospective

application.   Accordingly, the portion of the district court's

order requiring Thompson to pay a $20.00 partial filing fee in

any suit he may file in the Northern District of Texas in the

next six months is vacated.

     AFFIRMED in part, VACATED and REMANDED in part as to the

alleged denial-of-medical-care claim and payment of partial

filing fee for future suits.




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