                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 22, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40487
                           Summary Calendar



                         JON MICHAEL WITHROW,

                         Plaintiff-Appellant,

                                versus

    ROY GARCIA; JASON HEATON; DEVERY MOONEYHAM; NOAH WALKER;
                        KENNETH THOMPSON,

                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                   USDC No. 6:02-CV-446-WMS-JKG
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jon Michael Withrow, Texas prisoner no. 675379, appeals the

dismissal as frivolous of his action brought under 42 U.S.C.

§ 1983, against employees of the prison. In his complaint, Withrow

contended, among other things, that prison officials deprived him

of adequate clothing and shelter during the winters of 1999-2000

and 2000-2001.

     Withrow had previously sued some of the same defendants over

almost identical prison conditions existing in the winter of 1999-

     *
       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this opinion should not be published and is not precedent except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. 04-40487
                                   -2-

2000.   See Withrow v. Heaton, No. 02-40435 (5th Cir. May 14, 2003)

(unpublished).       He had sought to raise claims relating to the

winter of 2000-2001 in an amendment to his complaint in Heaton.

The magistrate judge refused to allow amendment and advised Withrow

that he was free to raise the new claims in a new lawsuit, which is

the subject of the instant appeal.          This court affirmed a bench-

trial     judgment   in   Heaton   by   concluding      that,     under   the

circumstances, Withrow had failed to show that the named defendants

acted with deliberate indifference to his health or safety with

respect to the winter of 1999-2000.         Id. at 2.

       The district court in the present case relied on the result in

Heaton to conclude that all the claims, including the present

claims involving a different time frame and different defendants,

were    frivolous.     Withrow’s   claims    in   the   instant    complaint

pertaining to the winter of 1999-2000 were indeed frivolous and

subject to dismissal in light of Heaton. Accordingly, the district

court’s judgment dismissing Withrow’s complaint insofar as it

raised claims pertaining to the winter of 1999-2000 is AFFIRMED.

       However, the district court did not articulate a clear basis

for dismissal as frivolous of the claims concerning the following

winter.    The doctrines of claim preclusion or issue preclusion do

not apply to render frivolous Withrow’s claims against different

defendants at a different time.      See United States v. Shanbaum, 10

F.3d 305, 310-11 (5th Cir. 1994) (discussing doctrines of issue

preclusion and claim preclusion).       This court discerns nothing in
                            No. 04-40487
                                 -3-

the prior opinions of this court or the district court that

establishes that the defendants, old and new, could not have acted

with deliberate indifference at a later date.   Further, this court

previously ruled in Heaton that Withrow’s similar, related claims

should not have been dismissed for failure to state a claim on

which relief could be granted.   See Withrow v. Heaton, No. 01-40350

(5th Cir. Sept. 24, 2001) (unpublished); see also Beck v. Lynaugh,

842 F.2d 759, 761 (5th Cir. 1988).

     The district court abused its discretion by dismissing the

action as frivolous in reliance on prior findings that did not and

could not logically assess the post-complaint actions of the

defendants.     The judgment of the district court dismissing the

claims related to the winter of 2000-2001 as frivolous is VACATED,

and the case is REMANDED for further proceedings in accordance with

this opinion.      The district court should conduct appropriate

proceedings to resolve the specific issues that were not and could

not logically have been resolved in Heaton.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
