               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-20505
                         Summary Calendar



DANTE D’AGOSTINO,

                                          Plaintiff-Appellant,

versus

PATERSON, Sergeant; D. MERRELL, DR.; JOHN DOE, #1, DR.; JOHN DOE,
#2, DR.; CHANNEY, DR.,

                                          Defendants-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. 96-CV-3826
                       - - - - - - - - - -

                           June 9, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Dante D’Agostino, Texas prisoner # 688309, appeals from the

district court’s order dismissing his civil rights complaint as

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).   He argues that the

defendant prison officials were deliberately indifferent to his

serious medical needs.   We have reviewed the record and

D’Agostino’s brief, and we conclude that the district court

abused its discretion by dismissing the complaint as frivolous as

to two defendants.   See Payne v. Lynaugh, 843 F.2d 177, 178 (5th

     *
        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that this opinion should not be published and is not precedent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. 98-20505
                                 -2-

Cir. 1988).   D’Agostino’s allegations at the Spears** hearing

present a nonfrivolous claim of interference with prescribed

medical care under the Eighth Amendment which, with further

factual development, "may pass section 1915[e] muster."    See

Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994).    D’Agostino’s

testimony was that:    1) at least two physicians in the prison

system prescribed a back brace for D’Agostino and that one of

them, Dr. Thompson (defendant Dr. John Doe #1), conditioned the

prescription on approval from nonmedical security personnel;

2) that Sergeant Patterson confiscated his prescribed back brace

even though it contained no metal and even after D’Agostino

showed him the prescription for it written by Dr. Thompson; and

3) that if the back brace did not contain metal, it was not a

security threat.   Any reliance on other evidence at the Spears

hearing to counter D’Agostino’s testimony was error.    See Wilson

v. Barrientos, 926 F.2d 480, 483 (5th Cir. 1991).    The facts to

which D’Agostino testified are not irrational or wholly

incredible, so they are not frivolous.     See Denton v. Hernandez,

504 U.S. 25, 33 (1992).    Accordingly, the district court’s

dismissal of the complaint as frivolous is VACATED as to

defendants Patterson and Thompson, and the case is REMANDED for

further proceedings.    The district court’s judgment is AFFIRMED

as to the remaining defendants.

     AFFIRMED in part; VACATED AND REMANDED in part.




     **
          Spears v. McCotter, 776 F.2d 179 (5th Cir. 1985).
