                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                       F I L E D
                IN THE UNITED STATES COURT OF APPEALS                 December 27, 2004
                        FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                               No. 04-40931
                             Summary Calendar


LARRY WILLIAMS,

                                               Plaintiff-Appellant,

versus

CAL WOOTEN, Warden; ET AL.,

                                               Defendants,

DICKERSON; S. JONES,

                                               Defendants-Appellees.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 3:01-CV-290
                       --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      Larry Williams, a Texas prisoner (# 648392), appeals the

district court’s order dismissing his pro se 42 U.S.C. § 1983 civil

rights    action      as    frivolous,       pursuant    to      28       U.S.C.

§ 1915(e)(2)(B)(i).

      In his complaint, Williams alleged that, upon his transfer to

the   Ramsey   II   Unit   (“Ramsey”)   in   September   1998,    defendant,

Classification Manager Dickerson, assigned him to work on a field

squad, although the duties involved in such work exceeded the work

      *
        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that this opinion should not be published and is not precedent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. 04-40931
                                 -2-

restrictions that had been issued for Williams upon his entry into

the prison system. Williams asserted that both Dickerson and Field

Officer Jones were aware of such restrictions and also knew that

his health summary reflected that he had a prior leg injury and

surgery and that a surgical pin and rod remained in place in his

knee and thigh.   He also suffers from emphysema. Williams appeared

to state that, in November 1998, the defendants acceded to the

“demands” of a physician’s assistant that he not be assigned to

such work.    According to Williams, Dickerson nonetheless returned

him to the field work in May 1999, which aggravated the old injury

and required him to undergo surgery again in June or July 1999 in

order “to avoid an amputation of the entire leg.”    He stated that

the work had caused the rod and pin to protrude into muscle tissue

in his thigh, resulting in severe swelling and an infection.

Williams alleged that Dickerson and Jones required him to return to

the field work even after the 1999 surgery.    Williams argued that

these actions violated his Eighth Amendment rights to be free from

cruel and unusual punishment.

     A district court shall dismiss an in forma pauperis complaint

at any time that the court determines that the complaint is

frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). We review a dismissal as

frivolous for abuse of discretion, Taylor v. Johnson, 257 F.3d 470,

472 (5th Cir. 2001), assuming that all of the plaintiff's factual

allegations are true.    Moore v. Carwell, 168 F.3d 234, 236 (5th

Cir. 1999).    A complaint is “frivolous” if it lacks “an arguable

basis in law or fact.”   Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999).
                                      No. 04-40931
                                           -3-

       “A   prison         official’s     ‘deliberate        indifference’         to    a

substantial risk of serious harm to an inmate violates the Eighth

Amendment.”      Farmer v. Brennan, 511 U.S. 825, 828 (1994).                 A prison

official acts with deliberate indifference “only if he knows that

inmates face a substantial risk of serious harm and disregards that

risk by failing to take reasonable measures to abate it.”                         Id. at

847.

       Prison     work     requirements     that    compel    inmates    to   perform

physical labor that is beyond their strength, endanger their lives,

or cause undue pain also constitute cruel and unusual punishment.

Howard v.       King, 707 F.2d 215, 219 (5th Cir. 1983).                          “[T]he

constitutionality          of   a     particular   working     condition      must      be

evaluated in the light of the particular medical conditions of the

complaining prisoner.”              Jackson v. Cain, 864 F.2d 1235, 1246 (5th

Cir. 1989).       Work that is not cruel and unusual per se may violate

the    Eighth    Amendment       if    prison    officials    are   aware     it    will

significantly aggravate a prisoner’s serious medical condition.

Id.

       The magistrate judge recommended that Williams’s complaint be

dismissed       as   frivolous,        relying   largely     on   “medical    records

provided by” Williams.              According to the magistrate judge, these

records showed that Williams had only a “sore” that was “cleaned

and    dressed”      and    a   “cyst”   that    tested    positive     for   a    staph

infection. These determinations suggest a far less serious medical

condition and surgical procedure than those alleged by Williams.

The record of the instant appeal, however, contains no medical

records from the surgery described by Williams.                       Williams has
                              No. 04-40931
                                   -4-

stated that he cannot afford to pay for his medical records or that

such records are missing.1

      In the absence of such records, we must rely on Williams’s pro

se allegations, and we must liberally construe those allegations in

his favor.   Moore, 168 F.3d at 236; Haines v. Kerner, 404 U.S. 519,

520   (1972).    Those    allegations   were    sufficient   to    state   a

cognizable Eighth Amendment claim that the defendants knew that

forcing   Williams   to   perform   field      work   exceeded    his   work

restrictions and would worsen his medical conditions. Accordingly,

we VACATE and REMAND for further proceedings not inconsistent with

this opinion.

      The district court concluded that Williams’s claims with

respect to events in 1998 were barred by the applicable two-year

Texas limitations statute for personal-injury actions and that

allegations of verbal threats or abuse by Jones were not actionable

under 42 U.S.C. § 1983.       Williams has effectively abandoned any

direct challenge to these conclusions, see Yohey v. Collins, 985

F.2d 222, 224-25 (5th Cir. 1993), except to the extent that the

defendants’ actions in 1998 might relate to their knowledge and

intent regarding events in 1999.

      VACATED AND REMANDED.




      1
        We can only speculate that the magistrate judge was
referring to medical records that might have been submitted by
Williams in another civil rights action, Cause No. 3:00-CV-436,
which was dismissed for want of prosecution in November 2000.
