               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 98-11504
                          Summary Calendar



TROY EDWARD HOLT,

                                            Plaintiff-Appellant,

versus

SHERRI McKELVEY, and
BRAD CASAL,

                                            Defendants-Appellees.

                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Northern District of Texas
                        USDC No. 2:98-CV-39
                        - - - - - - - - - -

                            July 12, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Troy Holt, Texas prisoner # 625235, proceeding in forma

pauperis (IFP) on appeal, filed a civil rights complaint pursuant

to 42 U.S.C. § 1983 against Sherri McKelvey, the chief of unit

classification at the Roach prison unit, and Brad Casal, the

warden at Roach.    Holt suffers from asthma and is restricted from

exposure to environmental pollutants, chemicals, and irritants.

On October 30, 1996, Holt was assigned to work on the garden

squad.   In his complaint Holt alleged that the defendants treated

     *
        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that this opinion should not be published and is not precedent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.
                            No. 98-11504
                                 -2-



his serious medical condition with deliberate indifference,

because they assigned him to a work detail that violated his

medical restrictions.    The district court dismissed Holt’s

complaint as frivolous and failing to state a claim upon which

relief may be granted.    See 28 U.S.C. § 1915(e)(2) and 42 U.S.C.

§ 1997(c).

     On appeal, Holt contends that the district court abused its

discretion when it dismissed his complaint.      He contends that his

assignment to work on the garden squad exposed him to chemically-

sprayed cotton, dust, pollen, and cold, damp weather, all of

which exacerbated his asthma.    Holt further contends that the

defendants were aware of Holt’s work restrictions, but insisted

that he work on the garden squad nonetheless.

     An IFP complaint may be dismissed as frivolous pursuant to

28 U.S.C. § 1915(e)(2)(B)(i) if it has no arguable basis in law

or fact and such a dismissal is reviewed for abuse of discretion.

Ruiz v. United States, 160 F.3d 273, 274-75 (5th Cir. 1998).

This court reviews a dismissal for failure to state a claim under

§ 1915(e)(2)(B)(ii) using the same de novo standard as dismissals

under Fed. R. Civ. P. 12(b)(6).    Id. at 275.    This court reviews

a dismissal under 42 U.S.C. § 1997e(c)(1) de novo.      Id.

     The district court erred when it dismissed Holt’s complaint

as frivolous and for failure to state a claim as to Holt’s

allegation that prison officials put him on a work detail which

they knew would significantly aggravate his asthma.      See Jackson

v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).     In its dismissal,
                           No. 98-11504
                                -3-

the district court went beyond the pleadings and resolved

disputed factual issues based on evidence submitted by the

defendants rather than confining its inquiry to whether the facts

pleaded by Holt, when accepted as true and viewed in the light

most favorable to Holt, stated a claim upon which relief may be

granted.   See Barker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996);

Cooper v. Sheriff, Lubbock County, Texas, 929 F.2d 1078, 1082

(5th Cir. 1991).   Moreover, Holt’s complaint does have an

arguable basis in law and fact.   Whether reviewing Holt’s claim

de novo or for abuse of discretion, Holt’s complaint should not

be dismissed at this stage.

      The district court did not abuse its discretion, however,

when it determined that Holt did not state a claim based on

exposure to cold, damp weather.   Holt did not allege any

restriction against such exposure.   Nor did he allege that the

defendants were aware of any such restriction.    Because Holt has

failed to state a claim with regard to his exposure to cold, wet

weather, that part of the district court’s dismissal is AFFIRMED.

     Accordingly, the decision of the district court is AFFIRMED

in part and VACATED and the case REMANDED in part to the district

court for further proceedings.

     AFFIRM IN PART; VACATE AND REMAND IN PART.
