     Case: 12-30784       Document: 00512379220         Page: 1     Date Filed: 09/19/2013




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

                                                                            FILED
                                                                        September 19, 2013
                                     No. 12-30784
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TROY DAVIS,

                                                  Plaintiff - Appellant

v.

JONATHAN A. ROUNDTREE; KENNETH NORRIS; UNKNOWN COLLINS,
Doctor,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:12-CV-41


Before JONES, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Troy Davis, Louisiana inmate
#356886, appeals the district court’s granting defendants’ Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss his action pursuant to 42 U.S.C. § 1983,
based on its ruling Davis failed to state a claim upon which relief could be
granted. Davis contends: the court erred by dismissing his claim without
further factual development; and defendants acted with deliberate indifference


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30784

to his serious medical needs, in violation of the Eighth Amendment, and caused
resulting physical injury. (Davis also presents ADA-based claims that were not
presented in district court. “It is a bedrock principle of appellate review that
claims raised for the first time on appeal will not be considered.” Stewart Glass
& Mirror, Inc. v. U.S. Auto Glass Discount Ctrs., Inc., 200 F.3d 307, 316-17 (5th
Cir. 2000).)
      A Rule 12(b)(6) motion’s being granted is reviewed de novo.              E.g.,
Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356, 357 (5th Cir. 2012). “[D]istrict
courts should not dismiss pro se complaints pursuant to Rule 12(b)(6) without
first providing the plaintiff an opportunity to amend, unless it is obvious from
the record that the plaintiff has pled his best case”. Hale v. King, 642 F.3d 492,
503 (5th Cir. 2011). An error in failing to afford a prisoner the opportunity to
amend his complaint “may be ameliorated . . . if the plaintiff has alleged his best
case, or if the dismissal was without prejudice”. Bazrowx v. Scott, 136 F.3d 1054
(5th Cir. 1998) (citation omitted). The district court did not specify whether the
dismissal was with, or without, prejudice; we therefore presume that the claim
was dismissed with prejudice. See Fernandez-Montes v. Allied Pilots Ass’n, 987
F.2d 278, 284 n.8 (5th Cir. 1993) (“it is well established that a dismissal is
presumed to be with prejudice unless the order explicitly states otherwise”).
      When a district court dismisses a pro se complaint with prejudice and
without opportunity to amend, our court considers whether the plaintiff’s
“allegations, if developed by a questionnaire or in a Spears dialog, might have
presented a nonfrivolous . . . claim”. Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994). If, “[w]ith further factual development and specificity these allegations
may pass . . . muster”, we will remand for the plaintiff to have “an opportunity
. . . to offer a more detailed set of factual claims”. Id. at 10. A review of Davis’
complaint shows he should be permitted to develop the factual and legal bases
for his claims.



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                                    No. 12-30784

         “Inadequate medical care by a prison doctor can result in a constitutional
violation for purposes of a § 1983 claim when that conduct amounts to deliberate
indifference to the prisoner’s serious medical needs, constituting the unnecessary
and wanton infliction of pain proscribed by the Eighth Amendment.” Harris v.
Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (internal alterations and citations
omitted).      Additionally, “[a] prison inmate can demonstrate an Eighth
Amendment violation by showing that a prison official refused to treat him,
ignored his complaints . . . or engaged in any similar conduct”. Easter v. Powell,
467 F.3d 459, 464 (5th Cir. 2006) (internal quotation marks and citations
omitted).
         In his complaint and objections to the magistrate judge’s report and
recommendation, Davis asserts Drs. Roundtree and Collins each recommended
surgery on both ears; however, according to Davis, both doctors ignored his
repeated requests for the recommended surgery. Davis further alleges this
inaction resulted in seven ear infections, hearing loss, spells of dizziness, and
loss of balance, which prevent him from walking. Davis also contends the
doctors denied a necessary medical-duty status. The alleged physical symptoms
would “constitute more than a de minimis physical injury”. See Brown v.
Lippard, 472 F.3d 384, 386 (5th Cir. 2006) (suggesting hand, knee, and shoulder
pain would exceed a de minimis threshold). To the extent the district court
based its dismissal on Davis’ failure to allege a physical injury, the district court
erred.
         “Under certain circumstances, allegations of deliberate indifference may
be shown when prison officials deny an inmate recommended treatment by
medical professionals.” Payne v. Lynaugh, 843 F.2d 177, 178 (5th Cir. 1988).
Insofar as Davis contends Assistant Warden Norris exhibited deliberate
indifference to his serious medical needs by denying him recommended
treatment, these allegations likewise raise a plausible deliberate-indifference
claim. See, e.g., id. at 178-79.

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      Liberally construed, Davis’ allegations, concerning ear infections, hearing
loss, and denial of surgery and duty status accommodations, do not raise
“fantastic or delusional scenarios” or an “indisputably meritless” legal theory.
See Eason, 14 F.3d at 9 n.5. Rather, they arguably raise a viable claim of
deliberate indifference to his serious medical needs. See, e.g., id. at 9; Easter,
467 F.3d at 463. Because Davis was not afforded an opportunity to amend his
complaint or participate in a Spears hearing, the district court erred by
dismissing Davis’ claim with prejudice for failure to state a claim upon which
relief may be granted.
      The judgment granting defendants’ motion to dismiss is VACATED, and
this action REMANDED for further proceedings consistent with this opinion.
We express no view on the ultimate disposition of Davis’ claims.




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