Shorty v. Melton, et al, No. 08-60797 (5th Cir. 2009)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-60797 Summary Calendar July 24, 2009 Charles R. Fulbruge III Clerk EDDIE SHORTY Plaintiff-Appellant v. JIMMY MELTON, Captain, Watch Commander, in his personal and official capacity; ANTHONY TAYLOR, Lieutenant, Escort Team, in his personal and official capacity; LOLA NELSON, Lieutenant, Disciplinary Chairperson, in his personal and official capacity; LAWRENCE KELLY, Superintendent, in his personal and official capacity Defendants-Appellees Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:07-CV-135 Before GARWOOD, SMITH and STEWART, Circuit Judges. PER CURIAM:* Eddie Shorty, Mississippi prisoner # 26507, proceeding pro se, appeals the dismissal of his pro se, in forma pauperis (IFP) civil rights complaint for failure to state a claim upon which relief may be granted. 1915(e)(2)(B)(i), § 1915(g). * See 28 U.S.C. § Shorty s complaint alleged, inter alia, that the Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. No. 08-60797 confiscation of his bedding for eighteen days and of his clothing for over two months in the winter of 2007, forcing him to sleep on a concrete slab with only my shorts in the winter, violated his rights under the Eighth Amendment. Given the liberality to be afforded pro se pleadings and the absence of a Spears hearing or the like, we conclude that this sua sponte dismissal for failure to state a claim, without leave to amend, was error. See, e.g., Wilson v. Seiter, 111 S.Ct. 2321, 2326-27 (1991); Helling v. McKinney, 113 S.Ct. 2475, 2480 (1993). The district court s judgment is vacated and the cause is remanded for further proceedings not inconsistent herewith. VACATED and REMANDED 2

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