     Case: 14-10491      Document: 00513172352         Page: 1    Date Filed: 08/27/2015




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

                                    No. 14-10491                                  FILED
                                  Summary Calendar                          August 27, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
ANTHONY DESHAWN THOMAS,

                                                 Plaintiff-Appellant

v.

JOHN MILLS, MD, Medical Director; D. PEYTON, LVN, John Peter Smith
Hospital - Correctional Healthcare,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Northern District of Texas
                              USDC No. 4:14-CV-9


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Anthony Deshawn Thomas, Texas prisoner # 1864213, proceeding pro se
and in forma pauperis, appeals the district court’s judgment dismissing with
prejudice his 42 U.S.C. § 1983 complaint for failure to state a claim upon which
relief could be granted. Thomas also moves for the appointment of counsel.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10491

      In his § 1983 complaint, Thomas alleged that the defendants were
deliberately indifferent to his serious medical needs during his five-month
detention at the Tarrant County Jail by failing to provide him with a
replacement mask for his personal Continuous Positive Airway Pressure
(CPAP) machine, which he had been using to treat his obstructive sleep apnea.
He also asserted that there was “no legitimate penological interest in not
providing” him with a CPAP mask, which was necessary for the CPAP machine
to function, and that the defendants also violated the Americans with
Disabilities Act (ADA) and Rehabilitation Act (RA).
      On appeal, Thomas argues, inter alia, that the district court erred in
dismissing his complaint without giving him opportunity to amend his
complaint to correct any deficiencies and that his complaint stated a plausible
claim for deliberate indifference.
      A prisoner’s civil rights complaint may be dismissed at any time if it fails
to state a claim on which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii);
28 U.S.C. § 1915A(b)(1). We review de novo the district court’s dismissal of
Thomas’s civil rights complaint for failure to state a claim under § 1915A(b)(1),
using the same standard applicable to dismissals under Federal Rule of Civil
Procedure 12(b)(6). See Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).
      Before dismissing a pro se litigant’s case for failure to state a claim, a
district court ordinarily must give the litigant an opportunity to amend his
complaint to remedy the deficiencies, which is primarily done by conducting a
hearing under Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), or
requesting a more definite statement through a questionnaire, Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Because the district court dismissed
Thomas’s pro se complaint without doing so, we consider whether Thomas’s
“allegations, if developed by a questionnaire or in a Spears dialog, might have



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                                  No. 14-10491

presented a nonfrivolous section 1983 claim.” Id. If, “[w]ith further factual
development and specificity” his “allegations may pass . . . muster,” we will
remand to give him “an opportunity . . . to offer a more detailed set of factual
claims.” Id. at 10.
      Although it appears that Thomas was a pretrial detainee during his
detention at Tarrant County Jail, “there is no significant distinction between
pretrial detainees and convicted inmates concerning basic human needs such
as medical care.” Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001).
“[P]retrial detainees have a constitutional right, under the Due Process Clause
of the Fourteenth Amendment, not to have their serious medical needs met
with deliberate indifference on the part of the confining officials,” Thompson v.
Upshur Cnty., 245 F.3d 447, 457 (5th Cir. 2001), and the deliberate indifference
standard articulated by the Supreme Court in Farmer v. Brennan, 511 U.S.
825, 837-40 (1994), applies to pretrial detainees and convicted prisoners alike,
see Hare v. City of Corinth, Miss., 74 F. 3d 633, 643 (5th Cir. 1996). A detainee
may also challenge the denial of medical care under a conditions-of-
confinement theory. Hare, 74 F.3d at 644-45. A conditions-of-confinement case
occurs when a constitutional attack is made on the “general conditions,
practices, rules, or restrictions of pretrial confinement.” Id. at 644.
      The record reflects that Thomas supported his complaint with
documents evidencing his obstructive sleep apnea and long-term use of a CPAP
machine and that Thomas repeatedly requested, but was denied, a
replacement mask for his CPAP machine. Those facts, along with Thomas’s
medical history and complaints of choking and gasping for air throughout the
night, were noted in the numerous unsuccessful medical requests and
grievances Thomas made to prison officials, including the defendants.




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                                  No. 14-10491

      Regardless whether Thomas can ultimately prevail on the merits of his
deliberate indifference claim, the facts alleged by Thomas in support of his
claim are not “fantastic or delusional,” nor is his legal theory of liability
asserted “indisputably meritless.” Eason, 14 F.3d at 9 n.5 (internal quotation
marks and citation omitted).      While we express no view on the ultimate
disposition of Thomas’s suit, his allegations, viewed in the light most favorable
to him, are sufficient to state a claim of deliberate indifference that is at least
plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further,
Thomas should have been permitted to develop his arguments concerning an
alleged infringement of his rights under the ADA and RA.
      Accordingly, the district court’s judgment dismissing             Thomas’s
complaint for failure to state a claim upon which relief could be granted is
VACATED, and this case is REMANDED for further proceedings consistent
with this opinion. Thomas’s motion for the appointment of counsel is DENIED,
given that this case is not particularly complex, and Thomas has demonstrated
that he is a capable litigant.




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