(caption unavailable)

*District Judge for the Western District of Louisiana, sitting
by designation.
**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should not be published.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 THE UNITED STATE COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
NO. 88-2713
___________________________
Kartis Ewing,
Plaintiff-Appellant,
versus
Jack Heard, et al.,
Defendants-Appellees.
__________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
No. CA-H-86-4145
__________________________________________________
( February 3, 1993 )
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District
Judge.*
Per Curiam**
In this 42 U.S.C. § 1983, the Plaintiff-Appellant, Kartis
Ewing, appeals the dismissal of his claims of use of excessive
force and of denial of medical care against Defendant-Appellees,
Jack Heard, former sheriff of Harris County, Texas, and J. H.

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2
Murphy, J. R. Dixon, D. L. Jones, R. Woods, and T. C. Wright,
deputies at the Harris County Jail. Finding that the district
court erred in dismissing this action, we reverse and remand.
I.
FACTS AND PROCEEDINGS
In November of 1982, Ewing was shot three times during the
commission of a crime. He underwent surgery and remained
hospitalized in Houston until December of 1982 when he was released
into the custody of the sheriff of Harris County. Ewing claims
that in March of 1983, while he was confined to the hospital
facilities at the Harris County Jail, he was assaulted by two
deputies when he refused to give up his blanket. He alleges that
the deputies caught him in a choke hold, twisted his injured arm
and re-broke his clavicle, which had been broken in the shooting.
At the time, he was a pre-trial detainee.
Approximately two months later, Ewing was released from the
hospital facilities at the jail and transferred to a hold-over
cell. While there, he contends, he experienced physical problems
and requested medical assistance. He maintains that the deputies
denied him the medical attention he sought, and instead moved him
to a basement room where one deputy "repeatedly str[uck] him in the
face, hands and body with his fists." Thereafter, he was taken to
the jail infirmary where he was x-rayed. Ewing states that he
could hardly walk, talk or chew for 12 days because of the severity

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1766 F.2d 179 (5th Cir. 1985).
2981 F.2d 1440 (5th Cir. 1993).
3962 F.2d 522 (5th Cir. 1992).
3
of the beating, but that the infirmary did nothing more than give
him two aspirin and an injection, the contents of which he has not
identified.
Some four years later, Ewing filed a § 1983 action against the
former sheriff of Harris county and five deputies assigned to the
Harris County Jail, alleging excessive use of force and denial of
medical care. A hearing was held at the jail pursuant to Spears v.
McCotter,1 and the district court dismissed Ewing's complaint as
frivolous, pursuant to 28 U.S.C. § 1915(d), concluding that Ewing
failed to state a claim for use of excessive force or for denial of
medical care, and that his action was untimely. Ewing timely
appealed.
Finding that the district court erred in its determination
that the action was untimely, and that the district court applied
an incorrect standard to the claim for denial of medical care, we
reverse and remand to allow the court to apply the correct standard
to Ewing's claim for denial of medical care, and to consider
Ewing's claim of excessive force under Valencia v. Wiggins2 and
Hudson v. McMillian.3
II.
ANALYSIS

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4See Wilson v. Barrientos, 926 F.2d 480 (5th Cir.), clarified
on reh., 926 F.2d 483, 483 (1991)(It is improper, in the context of
a Spears hearing, to "accomplish expedient fact-finding by
reviewing unauthenticated records and accepting unsworn
testimony.") See also Gilbert v. Collins, 905 F.2d 61 (5th Cir.
1990).
4
A. Evidence at the Spears Hearing
Other than Ewing's testimony, the only evidence presented his
Spears hearing came in the form of some of Ewing's medical records.
In its opinion dismissing the case, the district court stated that
the medical director of the Harris County jail, Dr. Ronald Haley,
read from Ewing's medical records at the hearing. Dr. Haley is not
identified on the Spears hearing tape, however, and neither do the
courtroom minutes or transcript of the hearing indicate that anyone
other than an attorney for the defendants was present. The
transcript of the Spears hearing indicates that information was
read from the medical records by the attorney for Harris County.
There is nothing in the record to indicate that the medical records
were authenticated; neither were the medical records placed into
evidence. The medical records therefore do not comprise part of
the record before this court.
The district court dismissed Ewing's case as frivolous
pursuant to 28 U.S.C. § 1915(d). Although we give broad discretion
to district courts in conducting Spears hearings, the use of
unauthenticated records or unsworn testimony to counter the
plaintiff's testimony is improper.4 "[T]he most important
consideration in a § 1915(d) credibility assessment is the inherent

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5Cay v. Estelle, 789 F.2d 318, 326 (5th Cir. 1986).
6See Valencia, 981 F.2d at 1440.
5
plausibility of a prisoner's allegations based on objective
factors...."5
Ewing alleges an incident of excessive force that resulted in
a refractured clavicle, an inherently plausible allegation. But
the district court, relying on what appears to be unauthenticated
medical records, determined that no injury occurred. Ewing's
testimony was to the contrary; he questioned the accuracy and
completeness of the medical records, and named the physician who
had treated Ewing's injury and had told him that his clavicle had
been refractured. That physician was not present at the Spears
hearing.
As the district court relied on unauthenticated medical
records presented by a layman in the absence of a physician, and as
the Defendants presented no other evidence to counter Ewing's
assertions, the district court erred in dismissing this case as
frivolous.
B. The Excessive Force Claim
Recently, in the wake of Hudson v. McMillian, we recognized a
new standard for the evaluation of excessive force claims made by
pretrial detainees.6 We now understand that the constitutional
standard to be applied to pretrial detainees under the Fourteenth
Amendment is the same as that applied to convicted prisoners under

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7634 F.2d 263 (5th Cir. 1981).
8The district court, without announcing its reasons, concluded
that Ewing failed to meet the test as set forth in Shillingford.
9441 U.S. 520 (1979).
6
the Eighth Amendment. Henceforth, all excessive force claims are
to be judged by the standard enunciated in Hudson.
In pretrial detention situations prior to Hudson, we applied
a substantive due process standard. That standard, enunciated in
Shillingford v. Holmes,7 is the standard that the district court
applied in the instant case.8 Because that is no longer the law of
this circuit, we reverse the district court and remand the case for
consideration in light of Hudson v. McMillian and Valencia v.
Wiggins.
C. Denial of Medical Care Claim
The district court applied an incorrect standard to Ewing's
pre-trial situation. It said:
The appropriate standard in determining whether an inmate has
stated a claim for denial of medical care is whether he has
suffered "deliberate indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
This was in fact inappropriate. Estelle is the standard for
convicted prisoners and is based on the Eighth Amendment. The year
before the district court's opinion, we differentiated pretrial
detainees from convicted prisoners for the purpose of assessing a
denial of medical care claim. Relying heavily on Bell v. Wolfish,9
which considered pretrial conditions of confinement, we held in

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10835 F.2d 82 (5th Cir. 1987).
11Id. at 85.
12846 F.2d 1009 (5th Cir. 1988).
13Id. at 1011 (emphasis added).
7
Cupit v. Jones10 that "pretrial detainees are entitled to reasonable
medical care unless the failure to supply that care is reasonably
related to a legitimate governmental objective."11
We are constrained to reverse the district court's conclusion
for a second reason. In Thomas v. Kippermann12 (coincidentally
released the day after the instant district court opinion), we
applied the Cupit standard to a pretrial detainee's claim of denial
of medical care. In finding that the plaintiff's claim stated a §
1983 action under Cupit, we said:
[The pretrial detainee's] allegations of denial of reasonable
medical care implicate more than mere negligence. [His] claim
could meet the standard of denial of reasonable medical care
if he told jail authorities that he needed his prescribed
medication (as he alleged at his Spears hearing) and if they
did not have him examined or otherwise adequately respond to
his requests. There is no indication that the district court
had before it [his] medical records from the Harris County
Jail. Absent these records, the record before the district
court was inadequate to rebut [his] allegations sufficiently
to support either Rule 12 of § 1915(d) dismissal on this
point.13
Because the district court in the instant case relied on
unauthenticated medical records, it was tantamount to that court's
having no records before it at all. Therefore, there was no
evidence to rebut Ewing's assertions. This compounded the court's
error in applying the incorrect standard to Ewing's denial of

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14Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989).
15Id.
8
medical care claim. Under those circumstances, the district court
erred in dismissing this case, so we must remand for the district
court to apply the correct standard and consider properly
authenticated evidence.
D. Statute of Limitations
The district court also held that Ewing's suit was not timely
filed. The Defendants have expanded this holding by attempting to
argue the equitable doctrine of laches, thereby preventing us from
reaching the merits of the case. The district court's conclusion
of time bar was incorrect, and the Defendants' laches argument is
frivolous.
In § 1983 suits, federal courts borrow the forum state's
general personal injury limitations period.14 A federal court
applying a state statute of limitations should also give effect to
the state's tolling provision for prisoners.15
Ewing filed this lawsuit in November of 1986. At that time,
§ 16.001 of the Texas Civil Practice and Remedies Code, as enacted
in 1985, provided that imprisonment was a disability that tolled
the running of the statute of limitations. Section 16.001 was not

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16Id. at 419.
9
amended until 1987 to state that imprisonment would no longer be
considered a legal disability in Texas.16
The record supports the assumption that Ewing was continuously
imprisoned from November 1982 to the present time. Therefore, even
though Ewing did not file suit until almost three and one half
years after the accrual of his cause of action, his suit was not
untimely in light of § 16.001.
III.
CONCLUSION
As the district court erred in (1) considering unauthenticated
medical records, (2) applying an incorrect standard to Ewing's
denial of medical care claim, and (3) incorrectly concluding that
Ewing's action was time barred; and as that court also tested
Ewing's excessive force claim under a standard that is obsolete in
light of Hudson v. McMillian and Valencia v. Wiggins, we REVERSE
the district court's dismissal and REMAND for further proceedings
consistent herewith.

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