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

                                                                              FILED
                                                                            March 12, 2014

                                        No. 12-40012                         Lyle W. Cayce
                                                                                  Clerk

FREDDIE R. COLEMAN,

                                                    Plaintiff-Appellant
v.

DAVID SWEETIN; GREGORY OLIVER; RICHARD COWAN; ROY BROWN,
Sued in his official and individual capacity; SHELIA DALE, Sued in her official
and individual capacity; MAE COBBS, Sued in her official and individual
capacity; DEBBIE ERWIN, Sued in her official and individual capacity; CRAIG
FISHER, Sued in his official and individual capacity; BLAKE LAMB, Sued in his
official and individual capacity; UNKNOWN MCMANUS, Sued in her official
and individual capacity; BRENDA HOUGH, Sued in her official and individual
capacity,

                                                    Defendants-Appellees



                     Appeal from the United States District Court
                          for the Eastern District of Texas


Before DAVIS and JONES, Circuit Judges, and MILAZZO,* District Judge.
PER CURIAM:
      Plaintiff Freddie Coleman, Texas Inmate No. 618875, appeals from the
district court's sua sponte dismissal of his 42 U.S.C. § 1983 suit as frivolous, for
failure to state a claim upon which relief can be granted, and for want of
prosecution. We hold that he does not state a claim under the Eighth

      *
          District Judge for the Eastern District of Louisiana, sitting by designation.
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                                  No. 12-40012

Amendment with the contention that a slippery shower condition may inflict
cruel and unusual punishment. We affirm in part, but also reverse in part, and
remand for further proceedings.
                                       I.
                                       A.
      Coleman filed this action pro se and in forma pauperis for injuries
sustained while incarcerated at the Eastham Unit of the Texas Department of
Criminal Justice ("Eastham"). He alleged that the shower floor of the "C Dorm"
was slippery and unsafe. Coleman further alleged that at least thirteen inmates
provided him with declarations that they had sustained injuries from slipping
and falling in the C Dorm shower and other dorm showers in Eastham.
      Coleman contends that defendants David Sweetin, Eastham Senior
Warden, and Gregory Oliver, Eastham Assistant Warden, were aware of these
dangerous conditions yet chose not to take corrective action. For example, on
June 8, 2009, Coleman verbally informed Oliver that, while working in
Eastham's laundry facilities, he witnessed three inmates fall in the C Dorm
shower. Oliver allegedly responded: "You don't need to worry about what's going
on with the shower floor. You need to worry about what's going on with the
washing machine." Additionally, between the months of April and May 2009,
Coleman sent three "I-60's" to defendants Richard Cowan and Roy Brown,
Eastham Maintenance Supervisors, informing them of the dangerous shower
conditions. Cowan and Brown advised that they were unable to address the
problem without a work-order from a "team supervisor" or permission from the
warden.
      Coleman allegedly fell in the C Dorm shower on or about June 14, 2009.
He informed defendant Sheila Dale, Eastham Officer, of the incident. He stated
that he was in severe pain and could not move his right leg. Dale advised that
Coleman must wait until the next day for medical treatment because the

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                                    No. 12-40012

infirmary was closed. Coleman insisted that it was an emergency. Dale refused
to call her supervisor and never filed an accident report.
      On or about June 20, Coleman allegedly fell in the C Dorm shower for a
second time. Coleman complained to defendant May Cobbs, Eastham Officer,
of the incident and stated that he was in severe pain and could not move his
right leg. Cobbs responded that the infirmary was closed and medical treatment
would have to wait until tomorrow morning. Coleman stated that he was in
extreme pain and that x-rays were necessary because he heard something "pop[]
like a break." Cobbs refused to call her supervisor and did not file an accident
report.
      On or about June 23, Coleman was examined by defendant Cheryl
McManus, a visiting physician's assistant.            Coleman explained that he
experienced severe pain ever since he fell in the C Dorm shower on June 14 and
June 20. Coleman complained that he could neither move his right leg nor stand
upon it. McManus ordered an x-ray. She subsequently examined the film and
opined that Coleman suffered from an acute case of arthritis.              The x-ray
technician allegedly disagreed, explaining that the x-ray revealed something
"more than arthritis." McManus responded that the she did not need the
technician's help.1 McManus refused to prescribe pain medication and cleared
Coleman to return to work, albeit with crutches. Coleman protested (to no avail)
that Eastham was not handicap accessible.
      Coleman returned to work at Eastham's laundry facilities later that
afternoon. Coleman informed Cobbs that he felt physically unable to perform his
duties. Cobbs allegedly responded that, absent a "lay-in," Coleman was required
to work or would be disciplined. Coleman's co-worker observed that Coleman
was in pain. The co-worker relieved Coleman from his duties and implored him

      1
      Coleman alleged in his complaint that Dr. Betty Williams subsequently stated that
McManus was not qualified to read x-rays.

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                                 No. 12-40012

to lay down. Coleman left the work site and subsequently attempted to take a
shower. While in the shower, Coleman alleges that he fell for a third time after
his crutches slipped out from underneath him.
      On July 6, Coleman's prison unit was put on "lockdown" in order to search
for contraband. By July 8, Coleman alleged that he was in so much pain that he
felt "hysterical." He was unable to lie in bed. The pain also prevented Coleman
from using the toilet, so he was forced to defecate in a bowl.
      Beginning on some unknown date, Coleman wrote "sick call request slips"
daily for 20-25 days. Coleman alleged that each was answered and subsequently
disregarded by defendant Brenda Hough, an Eastham Nurse Practitioner.
      On or about July 10, while Coleman's unit was still on lockdown, Hough
and another nurse made "sick calls" to prisoner cells. After observing Coleman's
crutches, Hough determined that she could not treat Coleman without using an
examination table. Because no examination tables were available at the time,
Hough refused to examine Coleman. Coleman pleaded with the nurses to take
him to the infirmary. Coleman explained that he experienced extreme pain and
believed that his right hip was broken. Hough responded that she was not
authorized to transport inmates to the infirmary unless they were "bleeding or
dying." Hough refused to provide pain medication and suggested that Coleman
continue to submit sick call requests.
      Defendants Debbie Erwin, Eastham Assistant Warden, and Major Craig
Fisher visited Coleman's cell on or about July 12. Coleman's unit was still on
lockdown at the time. Coleman informed the defendants he had fallen in the
shower on three separate occasions, that he experienced severe pain and could
not move his leg, that he was unable to sleep or use the toilet, and that he had
attempted, unsuccessfully, to visit the infirmary since June 23.           Fisher
instructed Erwin to record Coleman's name and number. Coleman alleged that
Erwin and Fisher never contacted the infirmary on his behalf.

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      On or about July 13, Coleman was summoned for a disciplinary hearing
before Defendant Captain Blake Lamb.2 At some point during the hearing,
Coleman complained of his injuries and unsuccessful attempts to obtain medical
treatment. Lamb responded that he was "running disciplinary court not sick-
call" and refused to help. Coleman pleaded for Lamb to reconsider his position.
Lamb ordered Coleman to leave his office.
      Hough examined Coleman after lockdown was lifted on July 18. She
recognized that he was in pain and ordered an x-ray. Hough informed Coleman,
however, that the x-ray could not be taken until three days later when the x-ray
technician was scheduled to return. Coleman requested an emergency x-ray,
complaining that he had experienced pain since late June. Hough responded
that he could "tough it out three more days." Coleman then requested pain
medication for his hip. He described the pain as having overtaken his entire
body. Hough refused to provide medication.
      Coleman was x-rayed on July 21 and diagnosed with a fractured hip.
Hough apologized for ignoring Coleman's previous complaints and arranged for
him to be seen at the John Sealy Hospital in Galveston. In preparation for
transport, Coleman was placed in a wheelchair which was subsequently loaded
into the back of a van.           Coleman described cramped and uncomfortable
conditions. He complained to Hough that he was in pain and requested pain
medication for the trip. Hough refused this request.
      Coleman was transported approximately 178 miles to the hospital on a
"rough and bumpy" road. By the time he arrived at the hospital, Coleman
described himself as "out of it" due to the pain. Doctors subsequently inserted
four pins and a plate during hip surgery. Coleman continues to suffer from pain




      2
          Coleman had been previously written up for having an "extra set of clothes pressed."

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                                 No. 12-40012

and takes "notriptyline," which he described as a psychotic drug for depression
and pain.
                                      B.
      Coleman filed suit pro se and in forma pauperis against Sweetin, Oliver,
Cowan, Hough, Brown, Dale, Cobbs, Erwin, Fisher, Lamb, and McManus in
federal court on September 27, 2010. Coleman alleged violations of the Eighth
Amendment for unsafe prison conditions and inadequate medical care.
      The magistrate judge held a Spears hearing on April 21, 2011. Nurse Tara
Patton confirmed that Coleman's prison file contains two x-rays, numerous I-60's
to the medical department, and documentation from the Galveston hospital.
Patton stated that the second x-ray revealed a "definitive" fracture.
      The magistrate judge then questioned Ginger Lively, a grievance
coordinator, as to whether Coleman had exhausted grievance procedures against
all defendants. Lively stated that he had "exhausted on his medical issues" but
not his complaints regarding the condition of the dorm shower.
      The magistrate judge issued a report on April 25, 2011, recommending
that Coleman's claims against all defendants except McManus be dismissed
under 28 U.S.C. § 1915A(b)(1). In the alternative, the magistrate judge noted
that Coleman had not exhausted his claims against "security personnel."
      The district court subsequently received consent from the parties to
proceed before the magistrate judge pursuant to 28 U.S.C. § 636(c). Each party's
consent was signed prior to April 25, 2011. The district court referred the case
to the magistrate judge for all proceedings on May 6, 2011.
      The magistrate judged issued a memorandum opinion and order of partial
dismissal on May 12, 2011. The order was virtually identical to the April 25,
2011, report and recommendations.
      On May 18, 2011, Coleman moved for an extension of time to file objections
to the report and recommendations. The magistrate judge denied the motion,

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                                      No. 12-40012

reasoning that because the parties provided consent under 28 U.S.C. § 636(c),
the normal procedures associated with a report and recommendations were no
longer applicable.
       On May 31, 2011, the Texas Attorney General's office ("AG") filed an
amicus curiae motion stating that it had been unable to contact McManus and
therefore could not file a responsive pleading on her behalf. The AG provided
McManus's last known address under seal. The magistrate judge then directed
the Clerk of Court to order a United States Marshal to serve process.
       On October 5, 2011, the magistrate judge issued an order stating that the
United States Marshal returned the summons for McManus unexecuted.
Coleman was given twenty days from the receipt of the order to provide a
current address for McManus.3 On October 24, 2011, the magistrate judge
granted in part Coleman's motion for an extension of time to submit a current
address for McManus. The deadline was extended until November 22, 2011.
Coleman was warned that no further continuances would be granted.
       On November 28, 2011, as a result of Coleman's failure to provide a
current address for McManus, the magistrate judge dismissed Coleman's claims
without prejudice. The order noted that the dismissal was, de facto, with
prejudice, given the expiry of the statute of limitations. Final judgment was
entered the same day. Coleman timely appealed.4


       3
        The magistrate judged appeared to assume that service of process failed because the
address provided by the AG's office was not current. Yet there is nothing in the record to
suggest that service failed for this reason. The record only reflects that the summons for
McManus was returned unexecuted.
       4
         Coleman first contends the magistrate judge erred by dismissing his claims on
May 12, 2011, prior to the deadline for filing objections to the April 25, 2011, report and
recommendations. We disagree. Under 28 U.S.C. § 636(b)(1), litigants may object to a report
and recommendations within fourteen days after service of same. If, however, the parties
consent to proceed before the magistrate judge, the magistrate judge may, with the district
court's approval, "conduct any or all proceedings . . . and order the entry of judgment."
28 U.S.C. § 636(c)(1). When the magistrate judge enters judgment, an aggrieved party appeals

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                                       No. 12-40012

                                             II.
       Coleman argues the magistrate judge erred by dismissing his claims
against certain defendants for failure to exhaust administrative remedies. We
review dismissals for failure to exhaust de novo. Carbe v. Lappin, 492 F.3d 325,
328 (5th Cir. 2007).
        The Prison Litigation Reform Act of 1995 requires a prisoner to exhaust
all available grievance procedures before filing suit. 42 U.S.C. § 1997e(a). This
requirement "applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516,
532, 122 S. Ct. 983, 992 (2002).
       In Jones v. Bock, the Supreme Court held that exhaustion is an affirmative
defense, rather than a pleading requirement the prisoner must satisfy in his
complaint. 549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007). As such, it is error to
dismiss a prisoner's complaint for want of exhaustion before a responsive
pleading is filed unless the failure to exhaust is clear from the face of the
complaint. Carbe, 492 F.3d at 328. District courts may not circumvent this rule
by considering testimony from a Spears hearing or requiring prisoners to
affirmatively plead exhaustion through local rules. See id.
       In response to question III on his form complaint, which seeks information
regarding the inmate's exhaustion of administrative remedies, Coleman attached
copies of the "Step 2" grievances that he previously submitted to prison
authorities. He did not otherwise mention exhaustion in his complaint. Thus,
in concluding that Coleman failed to exhaust administrative remedies, the


directly to the court of appeals "in the same manner as an appeal from any other judgment of
a district court." 28 U.S.C. § 636(c)(3).
        By consenting to proceed before the magistrate judge, Coleman also consented to the
entry of final judgment pursuant to 28 U.S.C. § 636(c)(3). Thus, any relief from that judgment
lies with this court. Furthermore, Coleman does not explain how the failure to consider his
objections was prejudicial, given that he was free to raise the same arguments in a motion to
reconsider or on appeal.

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                                       No. 12-40012

magistrate judge necessarily relied upon the Step 2 grievances or Lively's
testimony from the Spears hearing. Either basis constitutes reversible error.5
                                             III.
       Because we cannot rely on the affirmative defense of failure to exhaust, we
must first consider the sufficiency of Coleman’s complaint against Sweetin,
Oliver, Cowan, and Brown for unsafe prison conditions. We review dismissals
under 28 U.S.C. § 1915A de novo. Green v. Atkinson, 623 F.3d 278, 280 (5th Cir.
2010) (per curiam). We accept the facts alleged in the complaint as true and
construe them in the light most favorable to Coleman.6 Id. Thus, Coleman's suit
can only be dismissed for failure to state a claim if the facts, taken as true, do
not “state a claim that is plausible on its face.” Amacker v. Renaissance Asset
Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). This includes
the basic requirement that the facts plausibly establish each required element
for each legal claim. Id. at 682-83; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557,
127 S. Ct. 1955 (2007). However, a complaint is insufficient if it offers only
“labels and conclusions,” or “a formulaic recitation of the elements of a cause of
action.”    Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Twombly,
550 U.S. at 555, 127 S. Ct. at 1955).


       5
          This result is consistent with unpublished decisions in which we have interpreted
Jones and Carbe to prohibit the use of form complaints to elicit information regarding a
prisoner's exhaustion of administrative remedies. See, e.g., Chamberlain v. Chandler, 344 F.
App'x 911 (5th Cir. 2009) (per curiam); McDonald v. Cain, 426 F. App'x 332 (5th Cir. 2011)
(per curiam).
       6
         We also accept as true Coleman's testimony in the Spears hearing. See Eason v. Holt,
73 F.3d 600, 603 (5th Cir. 1996) (explaining that a Spears hearing "amplif[ies] the allegations
in the prisoner's complaint" and therefore "becomes a part of the total filing by the pro se
applicant").

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      Conditions of prison confinement are subject to Eighth Amendment
scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994).
The "[u]nnecessary and wanton infliction[] of pain" provides the lodestar for
Eighth Amendment analysis.           See Hope v. Pelzer, 536 U.S. 730, 737,
122 S. Ct. 2508, 2514 (2002). An Eighth Amendment claim has two elements.
Farmer, 511 U.S. at 834, 114 S. Ct. at 1977. "First, the deprivation alleged must
be, objectively, sufficiently serious" such that the prison official's act or omission
constitutes a "denial of the minimal civilized measures of life's necessities." Id.
(internal quotation marks omitted). Second, the "prison official must have a
sufficiently culpable state of mind," i.e., he must act with "deliberative
indifference" to inmate health and safety. Id. A prison official acts with the
requisite mental state when he "knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference." Id.
      In dismissing Coleman's claims against Sweetin, Oliver, Cowan, and
Brown, the lower court essentially held that prisoner slip-and-fall claims almost
never serve as the predicate for constitutional violations as a matter of law. We
agree with this conclusion.
      Coleman fails to state a claim as to the first prong of the Farmer test. A
slippery shower floor, although a potential hazard, is “a daily risk faced by
members of the public at large.” Reynolds v. Powell, 370 F.3d 1028, 1031
(10th Cir. 2004); see also LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993);
Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (“slippery prison floors . . .
do not state even an arguable claim for cruel and unusual punishment”). Other
federal courts, including district courts in this circuit, have frequently rejected




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                                        No. 12-40012

constitutional claims arising from slip and fall accidents.7 The usual reasoning
is that the existence of slippery conditions in any populous environment
represents at most ordinary negligence rather than a condition so threatening
as to implicate constitutional standards. One exception serves to reinforce this
general rule of rejection.           In Frost v. Agnos, 152 F.3d 1124, 1128-29
(9th Cir. 1998), the court reversed summary judgment for a prisoner who
asserted an Eighth Amendment claim after he slipped and fell in the shower
while on crutches. The Frost decision, however, rests on defendants’ failure to
accommodate his disabled condition, not simply on the slippery floor. Earlier,
in LeMaire, the Ninth Circuit refused to hold that “shackling a dangerous
inmate in a shower creates a sufficiently unsafe condition.” Thus, that Coleman
asserts foreknowledge of the slippery conditions by the wardens and
maintenance supervisors is not relevant to the first prong of Farmer.
                                              IV.
       The Eighth Amendment requires that inmates receive "adequate medical
care." See Rogers v. Boatright, 709 F.3d 403, 409 (5th Cir. 2013) (internal
quotation marks omitted). Prison officials may violate this mandate when they
exhibit "deliberate indifference to a prisoner's serious medical needs." Easter v.


       7
         See Noble v. Grimes, 350 F. App’x 892, 893 (5th Cir. 2009) (affirming dismissal as
frivolous of prisoner § 1983 claim that defendant was deliberately indifferent by failing to
correct slippery shower floor); Beasley v. Anderson, 67 F. App’x 242, 242 (5th Cir. 2003) (same);
Mack v. Johnson, 48 Fed. App’x 105, 105 (5th Cir. 2002) (same); Marsh v. Jones, 53 F.3d 707,
712 (5th Cir. 1995) (holding that Eighth Amendment violation based on wet floor caused by
leaking or sweating air conditioner unit); Denz v. Clearfield Cnty., 712 F.Supp. 65, 66
(W.D. Pa. 1989) (finding no Eighth Amendment violation based on a slippery floor in prison
cell); Mitchell v. West Virginia, 554 F.Supp. 1215, 1216-17 (N.D.W. Va. 1983) (finding no
Eighth Amendment violation based on slippery floor in prison dining hall); Robinson v. Cuyler,
511 F.Supp. 161, 162, 163 (E.D. Pa. 1981) (finding no Eighth Amendment violation based on
slippery floor in prison kitchen); Tunstall v. Rowe, 478 F.Supp. 87, 88, 89 (N.D. Ill. 1979)
(finding no Eighth Amendment violation based on greasy prison stairway); Snyder v.
Blankenship, 473 F.Supp. 1208, 1209, 1212-13 (W.D. Va. 1979) (finding no Eighth Amendment
violation based on pool of soapy water from leaking dishwasher in prison kitchen), aff’d,
618 F.2d 104 (4th Cir. 1980).

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Powell, 467 F.3d 459, 463 (5th Cir. 2006). We address the defendants against
whom these allegations were made.
      The magistrate judge concluded that prior to Coleman's June 23 x-ray,
none of the defendants were aware of Coleman's serious medical needs. Whether
this is correct or not, we do not explore, because Coleman did not adequately
brief in this court any contention that the magistrate judge erred in dismissing
Dale and Cobbs, the correction officers who saw him after his first two falls.
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (pro se appellants’ “arguments
must be briefed to be preserved.”).
      Coleman's allegations suggest that Erwin and Fisher became aware of his
serious medical needs. He informed them during lockdown that he had fallen
multiple times, his right hip was broken, and he was unable to move his leg, lie
in bed, or use the toilet. Coleman also stated that despite his best efforts, he had
been unable to visit the infirmary for the last four weeks. Fisher allegedly told
Erwin to write down the report, but they allegedly did not follow up.
      The complaint also alleges that Lamb was aware of Coleman's serious
medical needs. At some point during his disciplinary hearing, Coleman informed
Lamb that he was in pain, that he could not move his leg, and that he already
asked several officials for medical attention but had been ignored.
      In order to demonstrate deliberate indifference when alleging inadequate
medical treatment, a prisoner must show that officials "refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any
similar conduct that would clearly evince a wanton disregard for any serious
medical needs." Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal
quotation marks omitted). Assuming, as we must, that the facts alleged in the
complaint are true, Erwin and Fisher ignored Coleman's complaints and pleas
for help. We must reverse the dismissal of these defendants and remand for
further proceedings.

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      With regard to defendant Lamb, however, the mere allegation that
Coleman complained of his pain and lack of official response during a
disciplinary proceeding Lamb conducted on an entirely different matter does not
suffice for Eighth Amendment purposes. Lamb, unlike Erwin and Fisher, is not
alleged to have had duties at the prison other than with respect to this discipline
proceeding. Coleman cannot show from the single encounter enough of an
interaction with Lamb to demonstrate Lamb’s potential deliberate indifference.
      Coleman alleges that Hough refused to treat him until July 18, 2009. We
have repeatedly held that "'[d]elay in medical care can only constitute an Eighth
Amendment violation if there has been deliberate indifference [that] results in
substantial harm.'" Easter, 467 F.3d at 464 (second alteration and emphasis in
original) (quoting Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993)).
Coleman suffered substantial harm as a result of Hough's persistent refusal to
answer his "sick-call request slips" or provide pain medication even when he was
in so much pain that he was unable to lie down in bed or use the toilet properly.
Hough also refused to provide pain medication in anticipation of Coleman's long
trip to the hospital, causing him to suffer greatly.         These allegations are
sufficient to raise the possibility of Hough’s deliberate indifference to Coleman’s
serious medical needs. We reverse the dismissal of Hough and remand for
further proceedings.
                                        V.
      Coleman contends the magistrate judge erred by dismissing his claims
against McManus for want of prosecution and failure to obey a court order.
Rule 41(b) authorizes the district court to dismiss an action sua sponte for failure
to prosecute or comply with a court order. See Long v. Simmons, 77 F.3d 878,
879 (5th Cir. 1996). We review for abuse of discretion. Bryson v. United States,
553 F.3d 402, 403 (5th Cir. 2008). Our review is more exacting where, as here,
"the dismissal is without prejudice but the applicable statute of limitations

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                                       No. 12-40012
probably bars future litigation."8 Boazman v. Econ. Lab., Inc., 537 F.3d 210, 213
(5th Cir. 1976).      We review such dismissals as we would dismissals with
prejudice. See Berry v. Cigna/Rsi-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992).
       "Dismissal with prejudice . . . is an extreme sanction that deprives a
litigant of the opportunity to pursue his claim." Gonzales v. Firestone Tire &
Rubber Co., 610 F.3d 241, 247 (5th Cir. 1980). A dismissal with prejudice will
be affirmed only if: (1) there is a clear record of delay or contumacious conduct
by the plaintiff, and (2) lesser sanctions would not serve the best interests of
justice. Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417 (5th Cir. 2006).
Because this test is conjunctive, both elements must be present.9
       The lower court dismissed McManus because Coleman failed to provide a
current address in order to effectuate service of process. Special rules govern the
procedure for service of process when plaintiffs proceed in forma pauperis.
Lindsey v. U.S. States R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir. 1996).
Under 28 U.S.C. § 1915(d) and Rule 4(c)(3), the district court is required to order
that service be made by an officer of the court. The propriety of the lower court's
dismissal must be reviewed in light of these provisions.
       When he learned that the marshal had not served process, Coleman moved
to continue the deadline for providing McManus's current address two weeks
after he was ordered to furnish it. As grounds for the continuance, Coleman
stated that he intended to seek discovery from the Galveston Hospital, the Texas
Department of Criminal Justice, and the "U.T.M.B." The magistrate judge


       8
        We have applied this heightened standard of review where the underlying basis for
dismissal was untimely service of process. See Millan v. USAA Gen. Indem. Co., 546 F.3d 321,
326 (5th Cir. 2008) (collecting cases).
       9
         In addition, we generally affirm dismissals with prejudice only upon a finding of at
least one of three aggravating factors: "(1) delay caused by [the] plaintiff himself and not his
attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct."
Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986).

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                                  No. 12-40012
granted the motion in part and extended the deadline by approximately one
month. Coleman's request to conduct additional discovery was denied because
the AG had already submitted McManus's last known address. Thus, the
magistrate judge concluded that it would be futile "to conduct discovery for an
address that has already been provided."       Coleman received the order on
November 2, 2011. Coleman did not provide McManus' current address and the
magistrate judge dismissed Coleman's claims on November 28, 2011.
      Coleman's failure to provide a current address for McManus constitutes,
at worst, negligent behavior. Moreover, it does not follow from the AG's inability
to provide a current address for McManus that any attempt to discover the
address from the Galveston Hospital, Texas Department of Criminal Justice,
U.T.M.B., or any other entity would be futile.       Under the circumstances,
Coleman did not exhibit the recalcitrance that our case law requires for a
dismissal with prejudice.
      Because the record is devoid of material delay or contumacious conduct,
we reverse the dismissal of McManus and remand for further proceedings.
                                       VI.
      For the reasons previously stated, we affirm the dismissals of defendants
Sweetin, Oliver, Cowan, Brown, Dale, Cobbs, and Lamb; we reverse and remand
the dismissals of defendants Erwin, Fisher, Hough, and McManus for further
proceedings in accordance herewith.
                    JUDGMENT AFFIRMED IN PART, REVERSED AND
                                          REMANDED IN PART.




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