       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0109P (6th Cir.)
               File Name: 00a0109p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                ;
                                 
FORREST ZAYNE BROWN,
                                 
         Plaintiff-Appellant,
                                 
                                 
                                     No. 98-6481
STEPHEN MICHAEL
                                 
RICHMOND, CHRISTOPHER             >
MICHAEL CROFT, and TONY          
                                 
                   Plaintiffs, 
LYNN MEADOWS,

                                 
                                 
                                 
           v.
                                 
                                 
         Defendant-Appellee. 
ALAN BARGERY,

                                 
                                1
     Appeal from the United States District Court
   for the Western District of Tennessee at Jackson.
    No. 98-01217—James D. Todd, District Judge.
             Submitted: February 2, 2000
          Decided and Filed: March 27, 2000
Before: MERRITT, SILER, and MOORE, Circuit Judges.




                           1
2     Brown, et al. v. Bargery                     No. 98-6481

                    _________________
                         COUNSEL
ON BRIEF: Forrest Zayne Brown, Chattanooga, Tennessee,
pro se.
  MOORE, J., delivered the opinion of the court, in which
MERRITT, J., joined. SILER, J. (pp. 9-10), delivered a
separate dissenting opinion.
                    _________________
                        OPINION
                    _________________
  KAREN NELSON MOORE, Circuit Judge. Forrest Zayne
Brown, a Tennessee prisoner proceeding pro se and in forma
pauperis, appeals a district court order dismissing his 42
U.S.C. § 1983 civil rights claim as frivolous pursuant to 28
U.S.C. § 1915(e)(2). Because Brown’s complaint contains
factual allegations and legal theories that conceivably
implicate Eighth Amendment concerns, the district court
erred when it dismissed the complaint as frivolous pursuant
to § 1915(e)(2). Furthermore, we believe the error was not
harmless because the district court could not have properly
dismissed Brown’s complaint pursuant to § 1915(e)(2) for
failure to state a claim on which relief may be granted. Thus,
we REVERSE the district court’s judgment, and REMAND
the case to the district court for further proceedings consistent
with this opinion.
                     I. BACKGROUND
  Brown and three other inmates at the Hardeman County
Correctional Facility brought this § 1983 suit against their
warden, Alan Bargery, seeking equitable relief on grounds
that the conditions at the prison violated their Eighth
Amendment rights. Plaintiffs alleged that the sleeping bunks
located in one of the prison’s housing units had been
improperly installed upside down, causing the inmates to slide
10   Brown, et al. v. Bargery                    No. 98-6481      No. 98-6481                          Brown, et al. v. Bargery           3

  I have had to go to the extremes of taking an old piece of      off their bunks and land onto the concrete floor. Plaintiffs
  sheet, ripping it into strips, and actually tying my            also alleged that the anchor bolts that fasten the bunks to the
  mattress onto the steel bunk so that it would no longer         wall improperly protruded into their sleeping area, which
  slide off.                                                      could potentially cause an injury. Brown initially filed a
                                                                  grievance with the prison’s review committee, but the
Thus, his bed has been taken care of. If the cruel and unusual    grievance was denied after prison officials claimed that the
punishment here is allowing the mattresses to slide off the       sleeping bunks had been installed in accordance with the
steel bunks, then inmates can easily cure the problem by tying    manufacturer’s specifications.
the mattresses in the very creative way suggested by Brown,
or in some other fashion.                                            On August 26, 1998, Brown and the other inmates filed a
                                                                  motion to proceed in forma pauperis. Brown was the only
  That leaves as an issue only the bolts which stick out of the   one of the inmates who properly completed and submitted an
wall and upon which inmates occasionally scratch themselves.      in forma pauperis affidavit and a prison trust fund account
I do not see how protruding bolts can constitute cruel and        statement. On September 22, 1998, the district court
unusual punishment, even if they stick out over a bunk. They      “screened” the case in accordance with the Prison Litigation
are not spikes and they do not seem to protrude for any great     Reform Act of 1995 (“PLRA”), dismissing it sua sponte
distance, according to the diagram in the record.                 pursuant to 28 U.S.C. § 1915(e)(2) on grounds that the Eighth
                                                                  Amendment claim was frivolous. The district court also
  The Constitution “does not mandate comfortable prisons.”        certified pursuant to 28 U.S.C. §11915(a)(3) that an appeal
Rhodes v. Chapman, 452 U.S. 337, 349 (1981). The                  could not be taken in good faith. Brown now appeals the
“officials must ensure that inmates receive adequate food,        district court’s decision to dismiss his complaint as frivolous.
clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer,                                  II. ANALYSIS
511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517,
526-27) (1984)).                                                    The district court granted Brown’s motion to proceed in
                                                                  forma pauperis and then dismissed his complaint as frivolous
   The officials in the institution involved in this case may     pursuant to 28 U.S.C. § 1915(e)(2).2 This court has held that
have been unwise or negligent, but their conduct has not risen
to the level of being deliberately indifferent under the Eighth
Amendment. Therefore, I would affirm the decision of the              1
district court.                                                         Brown may appeal the district court’s dismissal of the complaint as
                                                                  frivolous even though the district court certified pursuant to 28 U.S.C.
                                                                  § 1915(a)(3) that an appeal could not be taken in good faith. See, e.g.,
                                                                  McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).
                                                                      2
                                                                        28 U.S.C. § 1915(e)(2) provides:
                                                                  Notwithstanding any filing fee, or any portion thereof, that may have been
                                                                  paid, the court shall dismiss the case at any time if the court determines
                                                                  that–
                                                                       (A) the allegation of poverty is untrue; or
                                                                       (B) the action or appeal–
                                                                            (i) is frivolous or malicious;
                                                                            (ii) fails to state a claim on which relief may be granted; or
4       Brown, et al. v. Bargery                         No. 98-6481        No. 98-6481                     Brown, et al. v. Bargery      9

a district court should only use § 1915(e)(2) to screen a                                         ______________
prisoner complaint in those instances where a prisoner is
proceeding in forma pauperis. See Benson v.O’Brian, 179                                              DISSENT
F.3d 1014 (6th Cir. 1999). Because Brown has requested                                            ______________
leave to proceed in forma pauperis, the district court properly
applied the screening requirements   set forth in § 1915(e)(2)                 SILER, Circuit Judge, dissenting. Although I agree that the
to the allegations in this case.3                                           district court might have erroneously dismissed the case as
                                                                            frivolous under 28 U.S.C. § 1915(e)(2), I feel that we should
   We review de novo a judgment dismissing a suit as                        nevertheless affirm the decision of the district court because
frivolous pursuant to §§ 1915(e)(2) and 1915A(b). McGore,                   Forrest Zayne Brown, the plaintiff, failed to state a claim
114 F.3d at 604. The Supreme Court has explained that a                     upon which relief may be granted under either 28 U.S.C.
complaint should be dismissed as frivolous only if it lacks an              § 1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1).
arguable basis in law or fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint lacks an arguable basis in law                    The Eighth Amendment only arises in prison conditions
or fact if it contains factual allegations that are “fantastic or           when an official is deliberately indifferent “to a substantial
delusional” or if it is based on legal theories that are                    risk of serious harm to an inmate.” Farmer v. Brennan, 511
indisputably meritless. Id. at 327-28; see also Lawler v.                   U.S. 825, 828 (1994). Even considering the evidence in the
Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990) (“Examples of                 light most favorable to Brown, as we must in a motion to
legal claims which are frivolous under Neitzke would be a                   dismiss, I do not see that there was a substantial risk of
state prisoner’s assertion of an eighth amendment claim                     serious harm to Brown. The conditions of which he
stemming from the actions of a state corrections officer                    complains are that the bunks are improperly installed in some
against the United States Attorney General or a prisoner’s                  of the areas, including his cell in the prison, resulting in his
assertion of a right to have a steak dinner once a week.”).                 falling out of bed and skin abrasions from the bolts which
                                                                            protrude from the wall near his bunk.
  In Nietzke, the Supreme Court considered a district court’s
sua sponte dismissal of a plaintiff’s Eighth Amendment claim                   I do not question the subjective test which the majority
on grounds that the claim was frivolous. The plaintiff in                   states is required, because Brown has apparently brought the
Nietzke, an inmate in the custody of the Indiana Department                 defective conditions to the attention of prison authorities.
of Corrections, alleged that his Eighth Amendment rights had                However, the objective test set out in Farmer is the one
been violated by prison officials who repeatedly denied his                 which fails in this case. This is a simple case of alleged
                                                                            negligence. According to the district court, the plaintiffs
                                                                            could file a claim against the state on a negligence theory
                                                                            under Tennessee law, but a negligence claim is not actionable
        (iii) seeks monetary relief against a defendant who is immune       under 42 U.S.C. § 1983. See Wilson v. Seiter, 501 U.S. 294,
from such relief.                                                           298 (1991). Admittedly, the failure of the bunk as presently
    3                                                                       installed without the lip on the upper side to retain the
      The district court should also have applied the screening             mattress might cause mattresses to slip, when the inmate rolls
requirements set forth in 28 U.S.C. § 1915A(b), which are virtually
identical to the screening requirements set forth in § 1915(e)(2). McGore   about in his bed. However, Brown’s original complaint
v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Section 1915A          provided an excellent solution which any inmate who rolls
applies in the present case because Brown is a prisoner who seeks redress   about in his bed could effect. In his complaint, he states:
from a government employee. 28 U.S.C. § 1915A(a).
8    Brown, et al. v. Bargery                     No. 98-6481      No. 98-6481                          Brown, et al. v. Bargery           5

we must assume, for present purposes, that the beds in the         requests for medical treatment. The district4 court screened
specified housing units were improperly installed upside           the case pursuant to 28 U.S.C. § 1915(d), dismissing the
down, which would pose an unreasonable risk of future injury       complaint as frivolous after it determined that these
by causing inmates to fall from their bunks while asleep and       allegations merely “described a constitutionally
by subjecting inmates to the hazards of rolling into sharp         noncognizable instance of medical malpractice.” Nietzke, 490
protruding mounting bolt studs. Pls.’ Compl. at 2. Moreover,       U.S. at 321-22. In dismissing the complaint, the district court
we must assume – based on Brown’s allegations concerning           equated the standard for frivolousness with the standard for a
his repeated attempts to notify prison officials about the         dismissal for the failure to state a claim upon which relief
conditions in his cell – that the warden knew about and            may be granted. On appeal, the Seventh Circuit reversed the
deliberately disregarded the risk to Brown’s health and safety.    district court’s determination that the complaint was
See Pls.’ Compl. at 2-5. Thus, we hold that the district court’s   frivolous, and a unanimous Supreme Court affirmed the
dismissal of Brown’s complaint as frivolous was not harmless       Seventh Circuit’s decision. The Court explained that “[w]hen
because the district court could not have properly screened        a complaint raises an arguable question of law which the
this case under § 1915(e)(2) even if the district court had        district court ultimately finds is correctly resolved against the
articulated as its theory for dismissing the complaint the         plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate,
rationale of failure to state a claim on which relief may be       but dismissal on the basis of frivolousness is not.” Id. at 328.
granted.
                                                                     In the present case, the district court determined that
                    III. CONCLUSION                                Brown’s personal safety claims were legally frivolous because
                                                                   his complaint did not satisfy the objective and subjective
  Because Brown’s complaint contains factual allegations           components of an Eighth Amendment violation. Like the
and legal theories that conceivably implicate Eighth               district court in Nietzke, the district court in this case has
Amendment concerns, the district court erred when it               confused a dismissal on grounds that a complaint is frivolous
dismissed the complaint as frivolous pursuant to § 1915(e)(2).     with a dismissal for the failure to state a claim upon which
Furthermore, we believe the district court could not have          relief may be granted. Indeed, it is important to remember
properly dismissed Brown’s complaint pursuant to                   that Brown’s complaint is frivolous only if the legal theories
§ 1915(e)(2) even on the basis of failure to state a claim on      raised in the complaint are indisputably meritless or if the
which relief may be granted. Thus, we REVERSE the                  factual contentions are fantastic or delusional. Here, Brown’s
district court’s judgment, and REMAND the case to the              claims regarding the improperly installed sleeping bunks
district court for further proceedings consistent with this        could conceivably implicate Eighth Amendment concerns.
opinion.                                                           See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 402-03 (6th
                                                                   Cir. 1999) (en banc) (holding that material issues of fact
                                                                   precluded summary judgment on inmate’s Eighth Amendment


                                                                       4
                                                                         Congress revised § 1915(d) and renumbered it as § 1915(e)(2) when
                                                                   it enacted the Prison Litigation Reform Act of 1995. Although Congress
                                                                   has made several substantive changes to § 1915 since the Supreme
                                                                   Court’s decision in Nietzke, see, e.g., Benson, 179 F.3d at 1016, these
                                                                   changes do not affect the Court’s analysis so far as the decision attempts
                                                                   to clarify what is meant by the term “frivolous.”
6     Brown, et al. v. Bargery                      No. 98-6481      No. 98-6481                     Brown, et al. v. Bargery       7

claims challenging the conditions of his confinement). Thus,         inmate must show that prison officials had “a sufficiently
we conclude that the district court erred when it dismissed          culpable state of mind.” Id. (citations omitted). “In prison-
Brown’s complaint as frivolous pursuant to § 1915(e)(2).             conditions cases that state of mind is one of ‘deliberate
                                                                     indifference’ to inmate health or safety.” Id. (citations
    Furthermore, we believe that the district court’s decision to    omitted). Although the deliberate indifference standard
dismiss Brown’s complaint as frivolous does not amount to            “describes a state of mind more blameworthy than
a harmless error because the district court could not have           negligence,” this standard is satisfied if “the official knows of
properly dismissed Brown’s complaint pursuant to                     and disregards an excessive risk to inmate health or safety; the
§ 1915(e)(2) even if it had articulated as its theory that           official must both be aware of facts from which the inference
Brown’s complaint failed to state a claim on which relief may        could be drawn that a substantial risk of serious harm exists,
be granted. We review de novo a judgment dismissing a suit           and he must also draw the inference.” Id. at 835, 837.
for failure to state a claim upon which relief may be granted
pursuant to §§ 1915(e)(2) and 1915A(b), viewing all the facts           Here, Brown’s allegations regarding the improperly
alleged in the complaint, as well as any inferences reasonably       installed sleeping bunks deal primarily with a single problem
drawn from those facts, in the light most favorable to the           at the prison: the unsafe sleeping environment in which the
plaintiff. McGore, 114 F.3d at 604. Dismissal of a complaint         improperly installed bunks caused inmates to slide off their
for the failure to state a claim on which relief may be granted      bunks and land on the concrete cell floor and subjected
is appropriate only if it appears beyond a doubt that the            inmates to the hazzards of rolling into protruding anchor bolt
plaintiff can prove no set of facts in support of his claim that     studs. Pls.’ Compl. at 2. These allegations are analogous to
would entitle him to relief. See Sistrunk v. City of                 those made in Helling v. McKinney, 509 U.S. 25, 28 (1993),
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996) (“A motion to         a case in which an inmate brought a § 1983 claim against
dismiss may be granted under Fed.R.Civ.P. 12(b)(6) ‘only if          prison officials, alleging that these officials had violated his
it is clear that no relief could be granted under any set of facts   Eighth Amendment rights by forcing him to share a cell with
that could be proved consistent with the allegations.’”)             another inmate who smoked five packs of cigarettes a day.
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)),         The Supreme Court concluded that the inmate had sufficiently
cert. denied, 520 U.S. 1251 (1997).                                  alleged an Eighth Amendment claim because the Eighth
                                                                     Amendment prohibits prison officials from exhibiting
   Brown has sufficiently stated an Eighth Amendment claim           deliberate indifference toward future health problems that an
if he has alleged facts that, if proven, would show that prison      inmate may develop as a result of current prison conditions.
officials acted with “deliberate indifference” towards               Id. at 35. As the Court explained, “[A plaintiff] states a cause
conditions at the prison that created a substantial risk of          of action under the Eighth Amendment by alleging that
serious harm. Farmer v. Brennan, 511 U.S. 825, 834 (1994);           [defendants] have, with deliberate indifference, exposed him
see also Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.            to levels of [Environmental Tobacco Smoke] that pose an
1997). This test involves both an objective and subjective           unreasonable risk of serious damage to his future health.” Id.
component. The objective component requires an inmate to
show that the alleged deprivation is “sufficiently serious.”           Like the inmate in Helling, the plaintiffs in the present case
Farmer, 511 U.S. at 834 (citations omitted). As the Supreme          have alleged facts that could conceivably show that the
Court explained in Farmer, “[T]he inmate must show that he           warden acted with deliberate indifference towards future
is incarcerated under conditions posing a substantial risk of        health problems that the inmates may develop as a result of
serious harm.” Id. To satisfy the subjective component, an           the unsafe sleeping conditions in their housing cells. Indeed,
