IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-60314

Summary Calendar

TRENT EASON,

Plaintiff-Appellant,

versus

STEVE PUCKETT; ED HARGETT; JAMES ANDERSON;

ETHEL CARLIZE; ANN LEE,

Defendants-Appellees.

---------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:96-CV-187-B-D

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October 2, 1998

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Trent Eason, a Mississippi inmate (# 47551), appeals the

dismissal of his civil rights complaint as frivolous pursuant to 28

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

(e)(2)(B)(i). Eason argues that the district court

abused its discretion in dismissing as frivolous his due-process

claim regarding his placement in a type of custody similar to

administrative segregation and in overlooking his Eighth Amendment

claims that related to such confinement. We have reviewed the

record and Eason’s brief and AFFIRM the district court’s dismissal

of Eason’s due-process claim for essentially the reasons set forth

by the magistrate judge and adopted by the district court. See

Eason v. Puckett, No. 4:96CV187-B-B (N.D. Miss. Mar. 27, 1997);

see Pichardo v. Kinker,

(5th Cir. 1996)(“[A]bsent

extraordinary circumstances, administrative segregation as such,

being an incident to the ordinary life as a prisoner, will never be

a ground for a constitutional claim”). Eason’s Eighth Amendment

allegations, which concern prison officials’ removal of an electric

fan from his cell and the health risks this removal allegedly

created, remain vague and conclusional and are insufficient to

state a claim under this court’s heightened pleading requirement

for

actions. See Colle v. Brazos County, Tex.,

, 243 & n.26 (5th Cir. 1993).

AFFIRMED.

JOHNSON, SAM J., Circuit Judges, concurring in part and dissenting

in part.

While I concur with the majority’s finding on Eason’s due

process claim, I believe that the district court dismissed his

Eighth Amendment claim prematurely.

2 No. 97-60314 -3-

The Eighth Amendment’s prohibition on cruel and unusual

punishment “imposes minimum requirements on prison officials in

the treatment received by and facilities available to prisoners.”

Woods v. Edwards,

(5th Cir. 1995) (citing Farmer

v. Brennan,

,

(1994)). This

Circuit has recognized that “conditions of confinement which expose

inmates to . . . identifiable health threats may implicate the

guarantees of the Eighth Amendment.” Wilson v. Lynaugh,

(5th Cir. 1989). However, the Eighth Amendment’s

protection extends only to “conditions of confinement which

constitute health threats but not against those which cause mere

discomfort or inconvenience.”

While Eason has been housed in “D-Custody,” his use of a fan

in his prison cell has been restricted. Eason complains, albeit in

a conclusory manner, that during the summer he must endure extreme

heat and humidity in his prison cell. He claims that the strong

odor from a cesspool outside his cell window makes breathing

difficult during the summer months. Eason contends that the sum of

these conditions aggravates his medical condition, which he

describes as “breathing problems.” Eason further claims that his

only relief from these conditions comes from the use of his fan.

For this reason, Eason asserts that depriving him of the use of his

fan while he is housed in “D-Custody” violates the Eighth Amendment

because such deprivation exposes him to extreme temperatures, foul

odors, and risks to his health.

3 No. 97-60314 -4-

Such allegations may state a colorable claim for an Eighth

Amendment violation. However, the record relating to Eason’s

Eighth Amendment claims consists of only the conclusory allegations

his pro se complaint and the attachments supporting the complaint.**

Because pro se pleadings must be construed liberally,*** this

Circuit has developed several judicial tools to assist courts in

distinguishing between the wheat of meritorious claims and the

chaff of frivolous ones.**** Such tools include written

interrogatories,***** Spears****** hearings, and allowing pro se

litigants to amend their claims.******* None of these opportunities

were afforded Eason before the district court dismissed his Eighth

Amendment claim as frivolous.

It may well be that after further development, the facts

underlying Eason’s complaint will be found to lack the requisite

** The district court adopted the suggestions of the magistrate judge and sua sponte dismissed Eason’s complaint as frivolous. Though Eason was given a Spears hearing, the magistrate judge inquired only about Eason’s due process claim. The Eighth Amendment claim was never addressed. *** See Haines v. Kerner,

,

(1972). **** The use of these judicial tools is not neccessary in every pro se proceeding. However, in the present facts, further factual development is merited. ***** See Watson v. Ault,

(5th Cir. 1976). ****** See Spears v. McCotter,

(5th Cir. 1985). ******* See Foulds v. Corley,

(5th Cir. 1987)

4 No. 97-60314 -5-

“arguable basis in law or fact” and will merit dismissal.******** See

Neitzke v. Williams,

, 325,

(1989). His claim could very well be disposed of by summary

proceedings.********* However, Eason has not been given a chance to

offer specific allegations in support of his complaint. Dismissal

as frivolous under

(d) could not be made without

further factual development consistent with Spears and its

progeny.********** Dismissal was, therefore, premature. For that

reason, I dissent from the majority opinion.

******** Eason raised his claims in a

action. In this Circuit § 1983 complaints are subject to heightened pleading requirements mandating that such pleadings state specific facts, not mere conclusory allegations. Colle v. Brazos County,

, 243 & n.26-27 (5th Cir. 1993); Mills v. Crim. Dist. Court No. Three,

(5th Cir. 1988). Eason’s pleadings, should he choose to amend them, will be subject to this standard.

********* In Woods v. Edwards, the court disposed of a similar Eighth Amendment claim by summary judgement. There, the court found that absent medical evidence or an identified basic human need that the prison had failed to meet, mere allegations of high temperatures in a lockdown cell could not support a claim that an inmate was subjected to cruel and unusual punishment. Woods v. Edwards,

(5th Cir. 1995) ********** Unless the frivolousness of a claim “is facially apparent, it is incumbent upon the court to develop the case and sift the claims and known facts thoroughly until completely satisfied either of its merit or lack of same.” Green v. McKaskle,

(5th Cir. 1986).

5