IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-10123

Summary Calendar _____________________

STANLEY J. STEVENS,

Plaintiff-Appellant,

v.

DR. C.D. ADAMS, ET AL.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (1:95-CV-12-C) _________________________________________________________________ (May 22, 1995) Before KING, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:*

Stanley J. Stevens appeals the dismissal under

(d) as frivolous of his prisoner's civil rights action.

Because Stevens' complaint was dismissed without giving him an

opportunity to amend, the questions presented in this appeal

revolve around whether Stevens' allegations are sufficient to

require an opportunity for further factual development. We affirm

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. in part and reverse in part.

Stevens, proceeding pro se and in forma pauperis, filed this

civil rights action under

against Dr. C.D. Adams;

D. Moya, Warden of John Middleton Unit, TDCJ; Officer Slaton, a

corrections officer; and the State of Texas, alleging that the

defendants violated his constitutional rights. He alleged that Dr.

Adams diagnosed him as having serious medical problems such as a

hernia and a heart murmur; that Dr. Adams failed to give him

therapeutic medical attention; that Dr. Adams prescribed Clonidine,

a high blood pressure medicine, to cover up his mistakes; and that

Dr. Adams insisted that he, Stevens, do work which he cannot

perform due to his illnesses. Stevens alleged that Officer Slaton

threatens him on a day to day basis with disciplinary action, which

"could lead to solitary confinement due to denial of serious

medical problems." He alleged that Warden Moya denied all of his

grievances from July 20, 1994, to the present, conspiring with

other state officials, which he should have known would violate his

constitutional rights. Stevens requested to be provided with

adequate counsel to protect his civil rights, to be moved to

another facility, and monetary damages from the individual

defendants.

Without conducting a Spears1 hearing or requiring Stevens to

fill out a questionnaire, the district court dismissed Stevens'

complaint as frivolous under

(d). The court stated

1 Spears v. McCotter,

(5th Cir. 1985).

2 that it reviewed Stevens' answers to the "Watson2 complaint form,"

and was of the opinion that the complaint had no basis in law or

fact. The district court held that Stevens' allegations against

Dr. Adams amounted to allegations of medical malpractice and did

not give rise to a claim under § 1983. The court held that his

allegations against Officer Slaton did not support a § 1983 claim

because threats do not constitute a constitutional violation. The

court stated that his allegations against Warden Moya did not have

a basis in law, and that he made no allegations against the State

of Texas.

Stevens' appellate brief basically restates his complaint,

with the added allegations that Dr. Adams placed him on high blood

pressure medicine to keep him from seeing a surgeon, and that

Officer Slaton insists on prosecuting him with disciplinary

actions.

A district court may dismiss an in forma pauperis complaint if

it is frivolous, that is, if it lacks an arguable basis either in

law or in fact. Denton v. Hernandez,

(1992). A complaint is legally frivolous if it is based on an

"indisputably meritless legal theory." Neitzke v. Williams,

(1989). A section 1915(d) dismissal is reviewed for

abuse of discretion. Denton,

.

The Eighth Amendment's prohibition against "cruel and unusual

punishment" protects Stevens from improper medical care only if the

care is "sufficiently harmful to evidence deliberate indifference

2 Watson v. Ault,

(5th Cir. 1976)

3 to serious medical needs." Estelle v. Gamble,

(1976). Deliberate indifference encompasses only unnecessary and

wanton infliction of pain repugnant to the conscience of mankind.

. The Supreme Court has recently adopted "subjective

recklessness as used in the criminal law" as the appropriate test

for deliberate indifference. Farmer v. Brennan,

(1994). Thus, a prison official or doctor acts with

deliberate indifference "only if he knows that inmates face a

substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it."

.

Unsuccessful medical treatment, acts of negligence, neglect, or

medical malpractice are insufficient to give rise to a § 1983 cause

of action. Varnado v. Lynaugh,

(5th Cir. 1991).

Nor is a prisoner's disagreement with his medical treatment

sufficient to state a claim under § 1983. Id. However,

allegations that prison officials required the inmate to work in

violation of medical restrictions, or to do work which aggravates

a serious medical condition, and punish the inmate for refusal to

work, knowing that a medical condition precludes such work, do

state a claim under § 1983. See Jackson v. Cain,

(5th Cir. 1989); Mendoza v. Lynaugh,

(5th

Cir. 1993).

As set out in his complaint, Stevens' allegations are

insufficient to state a claim under § 1983. His allegations

against Dr. Adams suggest only medical malpractice or disagreement

with his medical treatment. See Varnado,

. Because

4 the district court did not conduct any further inquiry into the

facts supporting Stevens' claims, Stevens was not given the

opportunity to expand on his allegations. The district court

implicitly treated Stevens' form complaint as such an opportunity,

calling it a "Watson complaint." The Watson panel, however,

appended a model form for prisoner civil rights complaints, which

was, if necessary, to be followed up by a questionnaire "as a

necessary pleading auxiliary, in the nature of a motion for more

definite statement, . . . in order that the court may assess the

factual and legal bases of the claim asserted." Watson,

. The "Watson questionnaire," as described in that opinion,

was clearly viewed as a separate document, to be sent to the

prisoner subsequent to the filing of the complaint as "a useful

means by which the court can develop the factual basis for the

prisoner's complaint."

This court's subsequent references to the "Watson

questionnaire" also clearly view it as a separate document designed

to "bring into focus the factual and legal bases" of the

allegations contained in prisoners' complaints. Spears, 766 at

181; Green v. McKaskle,

(5th Cir. 1986); Cay v.

Estelle,

(5th Cir. 1986); Wilson v. Barrientos,

(5th Cir. 1991) (Watson questionnaires were "sent

to prisoners to elaborate on often less than artfully-drafted

pleadings"); Graves v. Hampton,

(5th Cir. 1993) (a

"Watson questionnaire" gives the prisoner the opportunity to

expound on the factual allegations of the complaint).

5 Stevens' claims do not fall under the characterization of

"pure fantasy or . . . a legally inarguable proposition." See

Eason v. Thaler,

(5th Cir. 1994). Stevens suggests

that Dr. Adams insisted that Stevens perform work which he could

not perform because of his illnesses. If given the opportunity,

Stevens could perhaps allege a factual scenario in which Dr. Adams,

aware of his medical conditions, deliberately refused to classify

him as unable to do certain work which the doctor knew would

aggravate his conditions.

Regarding Stevens' claims against Officer Slaton, he alleged

that Slaton threatened him with disciplinary action, but did not

allege that the threats were actually carried out. The district

court was correct that threats are insufficient to state a claim

under § 1983. See McFadden v. Lucas,

(5th Cir.),

cert. denied,

(1983). In his brief, Stevens asserts

that "Officer Slaton Co III insist [sic] on prosecuting me and

being deliberately indifferent with disciplinary actions which is

depriving me of my civil constitutional rights which could lead to

solitary confinement due to discover seriour [sic] medical

problems." Appellant's brief, 2. Stevens also states that the

defendants violated his constitutional rights "by makeing [sic]

inmate work when in fact unable to do work and receives

disciplinary actions and deprivation of civil rights." Id. at 1.

This suggests that Slaton may have done more than merely threaten

Stevens with disciplinary action. Stevens does not specifically

state, in his complaint or his brief, that the disciplinary action

6 was threatened or taken due to his refusal to work for medical

reasons, but the inference is there.

Stevens alleged that Warden Moya denied his grievances, but he

did not allege any facts - even facts that would support an

inference - to show why Moya's actions would violate his

constitutional rights. The claims against the warden were,

therefore, correctly dismissed. The district court was also

correct in noting that Stevens made no allegations against the

State of Texas.

Because Stevens' claims against Dr. Adams and Officer Slaton,

with further factual development, may survive

(d)

scrutiny, the district court abused its discretion in dismissing

these claims as frivolous. See White v. Reed, 94-40362 (5th Cir.

Aug. 29, 1994) (unpublished; copy attached) (granting IFP and

vacating and remanding for further factual development on claims

that inmate was required to work in violation of medical

restrictions); Eason,

.

The judgment of the district court dismissing Stevens'

complaint is AFFIRMED as to Warden Moya and the State of Texas and

REVERSED and REMANDED as to Dr. Adams and Officer Slaton.

E. GRADY JOLLY, Circuit Judge, dissenting:

I would affirm.

7