                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               August 17, 2007

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 06-10648
                         Summary Calendar


                         RICHARD CHAMBERS

                                              Plaintiff-Appellant,

                              versus

 WARDEN COLE JETER, FCI - Fort Worth; CAPTAIN LES PHILLIPS, FCI -
  Fort Worth; LIEUTENANT MUNOZ, Special Agent Internal Affairs at
       FCI - Ft. Worth; LIEUTENANT M. HOPKINS, Special Agent
Investigative Services at FCI - Ft. Worth; OFFICER ROTHMAN, FCI -
Fort Worth; MEDICAL DOCTOR HERNAN REYES, Clinical Director at FCI
 - Fort Worth; PAUL CELESTIN, Health Service Administrator at FCI
    - Fort Worth; DR. S.K. KWATRA, Medical Officer at FCI - Ft.
                  Worth; FEDERAL BUREAU OF PRISONS

                                             Defendants-Appellees.


          Appeal from the United States District Court
               for the Northern District of Texas
                          (4:06-CV-304)


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Richard Chambers, federal prisoner # 32862-177, appeals, pro

se, the 28 U.S.C. §§ 1915(e)(2)(B) and 1915A dismissal, for failure

to state a non-frivolous claim, of his civil rights action against

Bureau of Prisons (BOP) employees.



     *
       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this opinion should not be published and is not precedent except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.
     A     dismissal   as   frivolous   pursuant   to   28   U.S.C.    §

1915(e)(2)(B)(i) is reviewed for abuse of discretion, e.g., Ruiz v.

United States, 160 F.3d 273, 275 (5th Cir. 1998); dismissals

pursuant to § 1915(e)(2)(B)(ii) (failure to state a claim) and §

1915A, de novo.    E.g., id.   Because the district court’s dismissal

referred to both § 1915(e)(2)(B) and § 1915A, de novo review

applies.    See Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005).

     Regarding the failure-to-state-a-claim dismissal of the claims

purportedly brought under 18 U.S.C. §§ 2, 241, and 1001, and Texas

Penal Code §§ 39.022 and 39.04, Chambers contends the district

court erroneously failed to liberally construe his pleadings or

require a more definite statement, pursuant to Federal Rule of

Civil Procedure 15(a).      Despite Chambers’ pro se status, dismissal

of these claims, which asserted criminal charges, was proper.         See

United States v. Carter, 953 F.2d 1449, 1462 (5th Cir. 1992).

     Similarly, the district court properly dismissed as frivolous

Chambers’ count-one deliberate-indifference claim regarding Dr.

Kwatra’s alleged inadequate pain treatment, because Dr. Kwatra’s

response to Chambers’ request for different pain medication does

not constitute deliberate indifference.       See Varnado v. Lynaugh,

920 F.2d 320, 321 (5th Cir. 1991).

     Dismissal as frivolous was also proper for Chambers’ count-one

claims regarding Jeter’s and Dr. Kwatra’s alleged intentional

infliction of emotional distress, see City of Midland v. O’Bryant,

                                    2
18 S.W.3d 209, 216-17 (Tex. 2000), and Chambers’ count-two claims

relying on United States ex rel. Accardi v. Shaughnessy, 347 U.S.

260 (1954), which alleged violations of BOP program statements.

See Royal v. Tombone, 141 F.3d 596, 600-01 (5th Cir. 1998); Miller

v. Henman, 804 F.2d 421, 426 (7th Cir. 1986); cf. Black v. Warren,

134 F.3d 732, 734 (5th Cir. 1998).

       For   his    other    count-one         deliberate-indifference        claims,

Chambers’ complaint alleged: defendants delayed and denied medical

care to him, including arm surgery; despite his advising Officer

Rothman of medical restrictions related to his heart condition and

high   blood    pressure,     Officer      Rothman     forced     him    to   work   in

violation of them; as a result, his blood pressure rose to a

dangerous level, he experienced light-headedness, fatigue, and

chest pain, he had an abnormal EKG, and he was hospitalized for

over a week; and Officer Rothman’s actions constituted intentional

infliction of emotional distress.                  Along that line, Chambers’

count-three claims alleged, inter alia, policies and customs of

punishing      inmates     with   manual       labor   and   retaliating      against

grievance-filing inmates, and his count-eight claims under the

Federal Tort Claims Act related to the alleged incident with

Officer Rothman and retaliation for Chambers’ filing a related

grievance.         These    claims   are   not     based     on   an    “indisputably

meritless legal theory”.          Davis v. Scott, 157 F.3d 1003, 1005 (5th

Cir. 1998) (internal quotation marks omitted); see also Jackson v.


                                           3
Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).         Moreover, the district

court, which did not give reasons in dismissing these claims as

frivolous, did not allow Chambers the opportunity to develop them.

Accordingly, such dismissal was improper.          See Davis, 157 F.3d at

1005; Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994); Moore v.

Mabus, 976 F.2d 268, 271 (5th Cir. 1992).

     Concomitantly, because exhaustion is an affirmative defense

that must be raised by the defendant, the district court’s failure-

to-exhaust conclusion was premature. See Jones v. Bock, 127 S. Ct.

910, 921 (2007).

     In   sum,   the   failure-to-state-a-claim      dismissal,     and   the

dismissal as frivolous of Chambers’ Accardi-based claims, his

deliberate-indifference      claim   regarding     Dr.   Kwatra’s   alleged

inadequate   pain    treatment,   and    his   intentional-infliction-of-

emotional-distress claims as to Dr. Kwatra and Jeter, are affirmed.

The dismissal as frivolous of the remaining claims is vacated, and

this matter is remanded for further proceedings consistent with

this opinion.

                    AFFIRMED IN PART; VACATED AND REMANDED IN PART




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