Kimbrell v. Thaler , 83 F. App'x 585 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 8, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10765
Summary Calendar
EDWIN EARL KIMBRELL,
Plaintiff-Appellant,
versus
M.G. THALER; JAMES D. MOONEYHAM; RICHARD E. WATHEN;
DAVID E. POTTER, M.D.; HARRY EDWARDS; MARY WAGNER;
PATRICIA MCAFEE; ANNE ESCALERA; TINA L. CARROLL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CV-279-R
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Edwin Kimbrell, Texas prisoner No. 429359, appeals the
district court’s denial of his motion to proceed in forma pauperis
(IFP) and certification that his appeal would not be taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Kimbrell argues that he alleged facts sufficient to support his
*
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that this opinion should not be published and is not precedent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.
claims of deliberate indifference, i.e., that each defendant was
aware of the importance of Kimbrell taking as prescribed his
medication for his cardiac condition but deliberately disregarded
that need.
The district court dismissed Kimbrell’s 42 U.S.C. § 1983complaint as frivolous upon determining that, even after answering
the district court’s questionnaire, he failed to allege specific
instances supporting his claims. Our review of the record reveals
either that (1) the grievances and documents attached to Kimbrell’s
complaint stated specific instances to support his deliberate-
indifference claims or (2) Kimbrell might be able to allege
specific instances of deliberate indifference if provided with
certain prison records. See Parker v. Fort Worth Police Dept., 980
F.2d 1023, 1026 (5th Cir. 1993); Jacquez v. Procunier, 801 F.2d
789, 793 (5th Cir. 1986); see also Estelle v. Gamble, 429 U.S. 97,
104-05 (1976). A review of the record also reveals that Kimbrell
may be able sufficiently to allege valid 42 U.S.C. § 1983 claims
with respect to his other claims. See Farmer v. Brennan, 511 U.S.
825, 832 (1994); Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir.
1999). Kimbrell should be given an opportunity to further develop
his claims.
Kimbrell’s motion to proceed IFP is GRANTED. The
district court’s certification that an appeal would not be taken in
good faith is VACATED. The dismissal of Kimbrell’s complaint as
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frivolous is VACATED, and the case is REMANDED for further
proceedings.
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