     Case: 13-10633      Document: 00512807598         Page: 1    Date Filed: 10/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                      No. 13-10633                                 FILED
                                                                             October 20, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
LAWRENCE ELBERT EDLER,

                                                 Plaintiff–Appellant,

versus

HOCKLEY COUNTY COMMISSIONERS COURT; CURTIS D. THRASH;
LARRY CARTER; JOSEPH L. BARNETT; THOMAS CLEVENGER;
SHERIFF (RETIRED) KEVIN DAVIS;
CAPTAIN ROBERTSON, (Jail), Sheriffs Department;
OFFICER CISC, Sheriffs Department;
OFFICER DELEON, Sheriffs Department;
OFFICER CAVAZOS, Sheriffs Department;
OTHER OFFICERS TO BE NAMED, Sheriffs Department;
DOCTOR NADIA TOOR, M.D., Southwest Rural Health Clinic,

                                                 Defendants–Appellees.


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 5:12-CV-168




Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Lawrence Edler, proceeding pro se and in forma pauperis (“IFP”),


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10633
appeals the dismissal of his 42 U.S.C. § 1983 action seeking compensatory
damages and injunctive relief for civil rights violations that he claims occurred
during his confinement at Hockley County Jail. He alleges that he was denied
constitutionally adequate medical care and that officers used excessive force
and discriminated against him in violation of the Americans with Disabilities
Act (“ADA”).
       After conducting a hearing pursuant to Spears v. McCotter, 766 F.2d 179,
181–82 (5th Cir. 1985), the district court 1 dismissed the claims with prejudice
as frivolous under 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A. Because the court
properly dismissed part of the action but erroneously dismissed claims that
arguably state a constitutional violation, we affirm in part, reverse in part, and
remand.


                                                I.
       A district court is required to dismiss a prisoner’s civil rights complaint
if it is frivolous, malicious, or fails to state a claim for relief. 2 A dismissal as
frivolous pursuant to § 1915(e)(2)(B)(i), which specifically applies to IFP
actions, is reviewed for abuse of discretion. Black v. Warren, 134 F.3d 732, 734
(5th Cir. 1998) (per curiam). It is uncertain whether the proper standard of
review for a dismissal as frivolous pursuant to § 1915A(b)(1) is abuse of dis-
cretion or de novo. 3 We need not decide that, because the proper standard of
review in this case is abuse of discretion under § 1915(e)(2)(B)(i).


       1   The magistrate judge served as the district court by consent under 28 U.S.C. § 636(c).
       2  §§ 1915(e)(2)(B)(i), (ii), 1915A(b)(1). See Jones v. Bock, 549 U.S. 199, 202 (2007)
(“[T]he [Prison Litigation Reform Act] mandates early judicial screening of prisoner com-
plaints . . . .”).
       3 Morris v. McAllester, 702 F.3d 187, 189 (5th Cir. 2012) (declining to resolve the ques-
tion because the appeal failed under both standards); see also Jackson v. Mizzel, 361 F. App’x
622, 625 & n.7 (5th Cir. 2010) (per curiam) (same).
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                                     No. 13-10633
           Edler is proceeding IFP, so we apply the abuse-of-discretion standard of
review of the more specific provision. Section 1915(e)(2)(B)(i) pertains specifi-
cally to IFP actions, and § 1915A(b)(1) applies to any “civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” A familiar cannon of statutory construction counsels
that the more specific provision in a statute should prevail over the more
general. 4
           Furthermore, applying the abuse-of-discretion standard to the dismis-
sal of an IFP action as frivolous comports with Denton v. Hernandez, 504 U.S.
25, 27 (1992), in which the Court explained that the federal IFP statute, which
allows an indigent litigant to sue in federal court without paying administra-
tive costs, protects against abuses by allowing a district court to dismiss the
case as frivolous. “Because the frivolousness determination is a discretionary
one . . . a § 1915(d) dismissal is properly reviewed for an abuse of that discretion
. . . .” Id. at 33.
           “An IFP complaint may be dismissed as frivolous if it lacks an arguable
basis in law or fact.” Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). “A
complaint lacks an arguable basis in law if it is based on an indisputably mer-
itless legal theory, such as if the complaint alleges the violation of a legal inter-
est which clearly does not exist.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999) (quoting Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)). “A com-
plaint lacks an arguable basis in fact if, after providing the plaintiff the oppor-
tunity to present additional facts when necessary, the facts alleged are clearly
baseless.” Talib, 138 F.3d at 213. Examples of “clearly baseless” factual




       4In re Armstrong, 206 F.3d 465, 471 (5th Cir. 2000) (“A provision must be considered
in context . . . and the more specific provision within a statute prevails.”).
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                                       No. 13-10633
allegations “are claims describing fantastic or delusional scenarios.” 5


                                             II.
       Edler alleges that he was denied constitutionally adequate medical care
during alcohol withdrawal and that officers used excessive force. Edler was
arrested on July 10, 2011, and brought to the jail. According to the intake
records, he said that he was about to experience delirium tremens, 6 was not
taking any medications, and had received mental health and mental retarda-
tion (“MHMR”) services seven years previously. He stated that when he was
undergoing alcohol withdrawal, he heard noises or voices that other people did
not seem to hear. At the Spears hearing, he testified that, before experiencing
symptoms, he informed Officer Cisc multiple times that he would need medical
attention during withdrawal.
       Edler testified that he hallucinated during withdrawal and does not
remember what happened. In his complaint he described waking up on about
July 14:
    When I came to my senses, I was naked in their “rubber room” and
    barely able to rise from the floor. I had a 7 [inch] gash on my left shin
    bone and my left big toe nail was sticking straight up—holding on by
    the cuticle. My left shoulder felt like it had been twisted off and my
    right kidney area was deeply bruised. My socks and underwear had
    been destroyed for blood contamination . . . . My lower leg and foot were
    covered in dried blood.

Edler claims that officers beat and stripped him while he was undergoing alco-
hol withdrawal. He does not know the identity of the officers but asserts that



       Hernandez, 504 U.S. at 32 (1992) (quoting Neitzke v. Williams, 490 U.S. 328 (1989));
       5

Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (per curiam).
       6Delirium tremens refers to “a severe, sometimes fatal, form of [delirium] due to alco-
hol withdrawal following a period of sustained intoxication.” STEDMAN’S MEDICAL DICTION-
ARY 506 (28th ed. 2006).
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                                  No. 13-10633
he could make that determination through discovery. He testified that jail
staff told him that he had injured himself.
      There is no indication in the jail records that medical personnel were
consulted during Edler’s withdrawal. His brief says that while he was waking
up from withdrawal, a female guard gave him some pills and a cup of water
and said “these will help.” After recovering from withdrawal, he was moved to
an isolation cell and received hydrogen peroxide for his wounds. He was placed
on suicide watch for about four days after his withdrawal symptoms had ended.


                                        A.
      Pursuing an “episodic-act-or-omission” legal theory, Edler challenges the
adequacy of his medical treatment. Under that theory, a plaintiff must prove
that an official acted or failed to act with deliberate indifference to the detain-
ee’s serious medical needs. Hare v. City of Corinth, Miss., 74 F.3d 633, 636 (5th
Cir. 1996) (en banc). It is well established that “delirium tremens is a serious
medical need.” Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 457 (5th Cir.
2001) (collecting cases).
      Deliberate indifference “means that: 1) the official was aware of facts
from which an inference of substantial risk of serious harm could be drawn;
2) the official actually drew that inference; and 3) the official’s response indi-
cates the official subjectively intended that harm occur.” Id. at 458–59. “Delib-
erate indifference is an extremely high standard to meet.” Domino v. Tex. Dep’t
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). It “cannot be inferred
merely from a negligent or even a grossly negligent response to a substantial
risk of serious harm.” Thompson, 245 F.3d at 458–59.
      The district court abused its discretion by dismissing Edler’s episodic-
act-or-omission claim as frivolous. The court concluded that “the responses to
Edler’s complaints were at least reasonable in light of Defendants’ other
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                                  No. 13-10633
responsibilities,” and his allegation does not “rise to the level of deliberate
indifference.” The Spears hearing, however, “is not a trial on the merits; it is
in the nature of an amended complaint or a more definite statement.” Adams
v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990).
      There are no medical records in the district-court record, and no indica-
tion in the jail records that any medical personnel were consulted while Edler
experienced delirium tremens, even when he suffered such injuries that his
socks and underwear had to be destroyed because they were saturated with
blood. Jail records corroborate Edler’s allegation that he told an officer that he
was about to experience delirium tremens. Because his claim is not based on
an indisputably meritless legal theory or clearly baseless facts, it was error to
dismiss it as frivolous.


                                       B.
      Edler also challenges the adequacy of his medical treatment under a
“condition-of-confinement” theory. He claims that Retired Sheriff Kevin Davis,
the Hockley County Commissioners’ Court, and its individual members had a
policy or practice of not providing constitutionally adequate medical care to
detainees during alcohol withdrawal. Specifically, Edler alleges that he and
other prisoners were injured by the policy of having no on-site medical person-
nel at the jail and that Davis allowed jailers to ignore prisoners’ medical needs.
At the Spears hearing, Edler testified that there were no medical personnel on
staff at the jail, and the medical clinic was six to eight blocks away.
      In a conditions-of-confinement case, the plaintiff must prove (1) a rule or
restriction, an intended condition or practice, or a de facto policy as evidenced
by sufficiently extended or pervasive acts of jail officials, (2) not reasonably
related to a legitimate governmental objective, and (3) that violated his consti-
tutional rights. Hare, 74 F.3d at 645; Shepherd v. Dallas Cnty., 591 F.3d 445,
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                                  No. 13-10633
452, 454–55 (5th Cir. 2009). To establish the first prong, a detainee challeng-
ing jail conditions must show more than an isolated incident; he “must demon-
strate a pervasive pattern of serious deficiencies in providing for his basic
human needs.” Shepherd, 591 F.3d at 454.
      The district court abused its discretion by dismissing Edler’s conditions-
of-confinement claim as frivolous. The court concluded that the allegations “do
not suggest a pervasive pattern” of serious deficiencies and that Edler has “not
indicate[d] that the decision to provide off-site medical staff instead of on-site
medical staff is not reasonably related to a legitimate governmental objective.”
Edler has asserted more than just the denial of medical care to him—he has
alleged that there is a de facto policy of not providing for the medical needs of
any detainees undergoing alcohol withdrawal. Although he has not clearly
alleged that the policy is not reasonably related to a legitimate governmental
objective, as a pro se litigant he should have been given an opportunity to
amend his complaint. Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009)
(per curiam).
      Alternatively, the court dismissed this claim on the ground that “Edler
has not alleged that Davis, the Hockley County Commissioners Court, or its
members were deliberately indifferent to Edler’s medical needs.” The court
erred in requiring deliberate indifference: For a conditions-of-confinement
claim, unlike an episodic-act-or-omission claim, a plaintiff is not required to
prove deliberate indifference. Duvall v. Dallas Cnty., Tex., 631 F.3d 203, 207
(5th Cir. 2011) (per curiam) (citing Hare, 74 F.3d at 644).


                                       C.
      Edler contends that officers used excessive force while he was under-
going alcohol withdrawal. A pretrial detainee has a right not to be subjected
to excessive use of force. See Hudson v. McMillian, 503 U.S. 1, 5–10 (1992);
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                                       No. 13-10633
Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993). To prove excessive
force, he must show “(1) injury, (2) which resulted directly and only from a use
of force that was clearly excessive, and (3) the excessiveness of which was
clearly unreasonable.” Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir.
2005). Claims of excessive force involve a fact-intensive inquiry. Newman v.
Guedry, 703 F.3d 757, 761 (5th Cir. 2012).
      The district court abused its discretion by dismissing Edler’s excessive-
force claim as frivolous. The court concluded that Edler has “failed to provide
any more than the bare allegation” and consequently does “not state a consti-
tutional violation.” Edler was injured during alcohol withdrawal and alleges
that several named and unnamed jailors caused his injuries. Although this
claim may be improbable, the allegations are not clearly baseless, and it was
error to dismiss this claim as frivolous. “Some improbable allegations might
properly be disposed of on summary judgment, but to dismiss them as frivolous
without any factual development is [improper].” Hernandez, 504 U.S. at 33.


                                             III.
      Edler alleges that he was denied constitutionally adequate medical care
for serious psychological and physical needs throughout his six-month stay at
the jail. He avers that he was given out-of-date prescription bipolar medication
that was brought to the jail by his sister. He claims that he was overmedicated
and not allowed to control his dosage such that he pleaded guilty of a crime
that he had not committed. 7 He further maintains that the defendants ignored
doctors’ warnings about his psychiatric care and improperly refilled his pre-
scription because he did not first receive blood tests or meet with a psychiatrist.
Edler alleges that he never saw an MHMR doctor despite making multiple


      7   Edler’s motion to file a habeas corpus petition was granted on February 7, 2013.
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                                 No. 13-10633
requests in writing.
      Edler was screened at intake on July 10, 2011, for psychiatric conditions
and testified that he had medical appointments at an off-site clinic on August 8
and November 16. Jail records show that he repeatedly requested refills of his
psychiatric medication and complained in writing when deliveries were dis-
rupted. According to the records, the prescriptions were filled a week after he
notified jail staff of the mistake. The records also show that he repeatedly
refused his evening medication. At the Spears hearing, he testified that blood
and lithium tests performed in December returned normal results and that he
did not sustain any physical injuries from the psychiatric care.
      On August 28, Edler complained in writing that his mattress was caus-
ing bed sores on both hips. Two days later, Captain Robertson offered to have
the mattress swapped out for a newer one. Edler complained in writing about
shoulder pain on November 8. A sergeant responded two days later, and Edler
testified that he received a medical appointment at an off-site clinic on
November 16.
      On December 1, Edler again requested medical treatment for bed sores
and shoulder pain. Jail staff checked him the following day and noted no bed
sores on any part of his body. Nevertheless, the records show that ibuprofen
was provided to him twice daily from December 6 until his transfer to the cus-
tody of the state prison system. On January 1, 2012, Edler requested another
doctor’s appointment for his shoulder and was told the following day that one
would be made. He was transferred to state custody on January 10, and he
states in his brief that “[x]-rays and MRI referral was made upon intake
screening.” He testified that x-rays of his shoulders did not show any damage.
      To succeed on these claims, Edler must prove that the officials acted with
deliberate indifference, which requires proving that “the official’s response
indicates the official subjectively intended that harm occur.” Thompson, 245
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                                 No. 13-10633
F.3d at 458–59. “Unsuccessful medical treatment, acts of negligence, or medi-
cal malpractice do not constitute deliberate indifference, nor does a prisoner’s
disagreement with his medical treatment, absent exceptional circumstances.”
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
      The district court did not abuse its discretion by dismissing Edler’s
claims of inadequate psychological and physical care. Edler testified that in
addition to medical screening in July and January, he was taken to doctor’s
appointments at an off-site clinic in August and November. He received medi-
cation regularly, and officers responded promptly to each of his thirty-two writ-
ten requests. On these facts, the court did not abuse its discretion in conclud-
ing that “Edler’s allegations do not indicate that Defendants were deliberately
indifferent” and in dismissing his claims as frivolous.
      Furthermore, the court properly dismissed Edler’s claims of inadequate
psychological care because, as he testified, he did not suffer physical injury.
Absent a physical injury, a prisoner in a federal civil action cannot recover
compensatory damages for a constitutional violation. 42 U.S.C. § 1997e(e);
Geiger v. Jowers, 404 F.3d 371, 376 (5th Cir. 2005) (per curiam).


                                      IV.
      Edler asserts that officers discriminated against him by housing him in
isolation for months and denying him access to MHMR doctors in violation of
the ADA. Edler claims he verbally requested to be moved to the general popu-
lation, and Officer Robinson replied that he could not be in the general popu-
lation because of the medications he was taking and “because [he] was bipolar
and he might go crazy on somebody.” He testified that despite making thirty-
two formal written requests at the jail, he never formally requested to be
moved out of isolation. The district court found that jail records showed that
Edler admitted trying to sell his psychiatric medication to other prisoners.
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                                       No. 13-10633
       The ADA prohibits discrimination in the receipt of public benefits on the
basis of a disability. 42 U.S.C. § 12132. To recover compensatory damages,
Edler must first prove intentional discrimination.               Delano-Pyle v. Victoria
Cnty., Tex., 302 F.3d 567, 574 (5th Cir. 2002). He must also prove physical
injury in accordance with 42 U.S.C. § 1997e(e). 8
       The district court did not abuse its discretion by dismissing Edler’s claim
of discrimination under the ADA. Edler has not alleged any physical injury
resulting from discrimination, so he cannot recover compensatory damages,
and under Barnes v. Gorman, 536 U.S. 181, 189 (2002), punitive damages are
barred.
       The judgment is REVERSED as to Edler’s claims of excessive force and
denial of adequate medical treatment during alcohol withdrawal, AFFIRMED
in all other respects, and REMANDED for further proceedings as needed. We
express no view on what decisions the district court should make on remand. 9




       8 Cassidy v. Ind. Dep’t of Corr., 199 F.3d 374, 376−77 (7th Cir. 2000) (holding that the
physical-injury requirement of § 1997e(e) applies to claims for compensatory damages under
the ADA); Robinson v. Corr. Corp. of Am., 14 F. App’x 382, 383−84 (6th Cir. 2001) (same);
Pierce v. Cnty. of Orange, 526 F.3d 1190, 1223−24 (9th Cir. 2008) (same).
       9To the extent that Edler still seeks appointment of appellate counsel, we agree with
this court’s previous denial of that. In a civil case, an attorney should be appointed only
under exceptional circumstances. Ulmer v. Chancellor, 691 F.2d 209, 212−13 (5th Cir. 1982).
On remand, the district court is free to consider whether, under that steep standard,
appointed counsel is now warranted.
                                              11
