               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 01-40350

                         Summary Calendar


JON MICHAEL WITHROW,
                                          Plaintiff-Appellant,

                              versus

JASON HEATON, et al.
                                          Defendants-Appellees.




          Appeal from the United States District Court
                for the Eastern District of Texas
                          (6:00-CV-627)

                        September 24, 2001


Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Withrow, a prisoner, alleges that prison officials refused to

repair windows during winter despite extremely cold temperatures in

the prison. Withrow also claims that he was forced to walk 400 feet

to the shower room in his underwear every day despite the extreme

cold. Proceeding pro se and in forma pauperis, he appeals the

dismissal of his 42 U.S.C. § 1983 action as frivolous and as



     *
      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this opinion should not be published and is not precedent except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.
failing to state a claim upon which relief may be granted. We

vacate and remand.

     An in forma pauperis complaint may be dismissed as frivolous

if it lacks an arguable basis in law or fact.1 We review the

dismissal of an in forma pauperis complaint as frivolous for abuse

of discretion.2 We review de novo the dismissal of an in forma

pauperis complaint for failure to state a claim.3 We must assume

that all of the plaintiff's factual allegations are true, and we

may uphold the dismissal only if it appears that no relief could be

granted under any set of facts that could be proven consistent with

the allegations.4

     The magistrate judge abused her discretion by dismissing

Withrow’s complaint as frivolous. In Beck v. Lynaugh,5 this court

reversed the dismissal of a claim that exposure to the elements

during winter months because of missing window panes constituted

cruel and unusual punishment.6 Withrow’s complaint presents facts

that mirror the allegation in Beck.

     In a case decided after Beck, the Supreme Court held that an

inmate must satisfy two requirements to demonstrate that a prison


     1
         Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
     2
         Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).
     3
         Clay v. Allen, 242 F.3d 679, 680 (5th Cir. 2001).
     4
         Id.
     5
         842 F.2d 759 (5th Cir. 1988).
     6
         Beck, 842 F.2d at 761.
official has violated the Eighth Amendment. First, the deprivation

must “result in the denial of the minimal civilized measure of

life’s necessities.” Second, the defendants must be “deliberate[ly]

indifferen[t] to inmate health or safety.”7

     Broadly construed, Withrow’s allegations state a cause of

action under this standard. Prisoners have a right to protection

from extreme cold,8 and it is at least arguable that Withrow was

subjected to extreme cold without adequate protection. Withrow has

also sufficiently alleged that prison officials were indifferent to

the health    and   safety   of   inmates.   Withrow   claims   that   while

officers wore heavy winter coats, caps, and gloves and acquired

space heaters for their stations to cope with the cold, they forced

inmates to walk to the shower in their underwear. He alleges that

officers would routinely tear down the cardboard coverings used by

prisoners to keep out the cold wind, and that for one winter season

the heating system was never turned on. Withrow’s claims are not

“pure fantasy or based upon a legally inarguable proposition.”9

     The magistrate judge also concluded that Withrow failed to

allege a physical injury, as required by 42 U.S.C. § 1997e(e).

Withrow’s claim that exposure to extreme cold exacerbated his

arthritis is sufficient. Withrow need not allege that he was



     7
         Farmer v. Brennan, 511 U.S. 825, 834 (1994).
     8
       Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir. 1999)
(quoting Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997)).
     9
         Eason, 14 F.3d at 10.
seriously harmed, but merely that there was an injury in fact.

     Accordingly, the district court’s decision is VACATED and

REMANDED for further proceedings consistent with this opinion.
