Herman v. Holiday , 238 F.3d 660 ( 2001 )

Revised February 2, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-30863
JOHNNY RAY HERMAN,
Plaintiff-Appellant,
VERSUS
LEROY HOLIDAY; RICHARD STALDER; POLICE JURY EAST CARROLL
PARISH; DETENTION CENTER EAST CARROLL PARISH; JACK WYLY;
INSURANCE LIABILITY CARRIERS; W. L. PAYNE; EARL K. FORTENBERRY;
BILLY TRAVIS; GEORGE HOPKINS; BROWN F. NELSON; JOSEPH JACKSON;
DARRIN DIXON; CLIFTON SCOTT; BOBBY L. MOORE,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
January 16, 2001
Before JONES and DeMOSS, Circuit Judges, and BARZILAY*, District
Judge.
DeMOSS, Circuit Judge:
Johnny Ray Herman (“Herman”), proceeding pro se and in forma
pauperis, appeals from a final judgment entered by the district
*
Judge, United States Court of International Trade, sitting by
designation.
court, Judge Robert G. James presiding, which granted summary
judgment to the defendants, East Carroll Detention Center warden
Leroy Holiday et al. (collectively “the defendants”), with respect
to Herman’s 42 U.S.C. § 1983 claim that the defendants subjected
him to various unconstitutional conditions of confinement at the
East Carroll Detention Center (“ECDC”) all of which violated his
Eighth Amendment right to be free from cruel and unusual
punishment. The district court, following consideration of a
report and recommendation from a magistrate judge and all of the
objections timely filed thereto, granted the defendants’ motions
for summary judgment, concluding that Herman was not entitled to
declaratory or injunctive relief because he was no longer
incarcerated at ECDC and that Herman’s complaint did not otherwise
state a compensable claim because he alleged only psychological,
not physical, injuries. The district court reasoned that pursuant
to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), a
prisoner may not bring a claim for mental or emotional injuries
suffered while in custody absent a prior showing of physical
injury.
Having carefully reviewed the entire record of this case, and
having fully considered the parties’ respective briefing on the
issues in this appeal, we AFFIRM the judgment of this district
court.
BACKGROUND
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Beginning on or about June 18, 1997, Johnny Ray Herman was
incarcerated for a period of approximately two months at the East
Carroll Detention Center in East Carroll Parish, Louisiana.1
Herman alleges that, while he was incarcerated at ECDC, the
facility was mosquito infested, had insufficient hot water with
which to wash dishes or bathe, did not properly sanitize eating
utensils (some of which were allegedly washed in large trash cans
without soap), served cold food which had been prepared elsewhere
and transported in coolers, contained an open cesspool near the
residence areas of the facility, failed to provide adequate loaner
clothing on laundry days, and was contaminated with asbestos to
which inmates were routinely exposed.
Herman filed his verified civil rights complaint pursuant to
42 U.S.C. § 1983 on October 14, 1997, and his complaint was twice
amended on June 26, 1998, and December 23, 1998, respectively.
Herman named the following individuals and entities as defendants:
the ECDC; Leroy Holiday (the warden of the ECDC); Richard Stalder
(secretary of the Department of Corrections); Jack Wyly (former co-
owner of the ECDC facility); the East Carroll Parish Police Jury;
and individual police jurors W.L. Payne, Earl Fortenberry, Billy
Travis, George Hopkins, Brown F. Nelson, Joseph Jackson, Darrin
Dixon, Clifton Scott, and Bobby L. Moore. Herman sought relief in
the form of an injunction, a declaratory judgment, and monetary
1
Herman is currently incarcerated in the Dixon Correctional
Institute in Jackson, Louisiana.
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damages. Herman alleges damages resulting from mental stress due
to being subjected to allegedly life-threatening conditions and the
possibility of illness.
Herman first filed a motion for summary judgment unsupported
by any summary judgment evidence, and the defendants subsequently
filed their own cross-motions for summary judgment. On referral,
federal Magistrate Judge James D. Kirk reviewed the cross-motions
for summary judgment, and on June 1, 1999, entered a report and
recommendation that the defendants’ motions for summary judgment be
granted. Without deciding whether Herman had asserted a valid
Eighth Amendment claim, the magistrate judge recommended dismissal
because Herman had failed to state a compensable claim. First, the
magistrate judge concluded that in light of Herman’s transfer from
the ECDC, his claims for declaratory and injunctive relief were
moot. Additionally, the magistrate judge concluded that in his
complaint, Herman alleged only psychological damages, some of which
related to his alleged increased risk of future injury from
exposure to asbestos. The magistrate judge concluded that the
Prison Litigation Reform Act, partly codified at 42 U.S.C.
§ 1997e(e), bars recovery for emotional or mental damages absent a
showing of physical injury, which was lacking in this case. The
district court adopted the report and recommendation and entered a
final judgment overruling Herman’s objections thereto. Herman has
timely appealed.
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STANDARDS FOR REVIEW
In this appeal, Herman contends that the district court erred
in granting the defendants’ motions for summary judgment. We are
guided by the following standards for review of the district
court’s award of summary judgment. We review the grant of summary
judgment de novo, applying all of the same standards applicable in
the district court. See Sherrod v. American Airlines, Inc., 132
F.3d 1112, 1119 (5th Cir. 1998). And we review the summary
judgment evidence in the light most favorable to the non-moving
party, in this case, Herman. See Melton v. Teachers Ins. & Annuity
Ass’n, 114 F.3d 557, 559 (5th Cir. 1997). Summary judgment under
Rule 56 of the Federal Rules of Civil Procedure is appropriate only
if
. . . the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c).
DISCUSSION
Our inquiry into whether the district court erred in granting
the defendants summary judgment must proceed in two steps. First
we must determine whether Herman has stated or alleged an Eighth
Amendment violation. Second, assuming he has, we must determine
whether, in light of the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(e), he is entitled to any relief.
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Eighth Amendment Claim
While the Constitution does not require that custodial inmates
be housed in comfortable prisons, the Eighth Amendment’s
prohibition against cruel and unusual punishment does require that
prisoners be afforded “humane conditions of confinement” and prison
officials are to ensure that inmates receive adequate food,
shelter, clothing, and medical care. Farmer v. Brennan, 114 S. Ct.
1970, 1976 (1994). In order to establish an Eighth Amendment
violation regarding conditions of confinement, an inmate must
establish: first, that the deprivation alleged was sufficiently
serious (i.e., an official’s act or omission must have resulted in
the denial of “the minimal civilized measure of life’s
necessities”); and second, that the prison official possessed a
sufficiently culpable state of mind. See id. at 1977. The
required state of mind for cases related to prison conditions is
that the official acted with deliberate indifference to inmate
health or safety. See Palmer v. Johnson, 193 F.3d 346, 352 (5th
Cir. 1999). Deliberate indifference is established by showing that
the defendant officials “(1) were aware of facts from which an
inference of excessive risk to the prisoner’s health or safety
could be drawn and (2) that they actually drew an inference that
such potential for harm existed.” Bradley v. Puckett, 157 F.3d
1022, 1025 (5th Cir. 1998).
With respect to Herman’s allegation that he was exposed to
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carcinogenic asbestos particles while housed at the ECDC, we note
that the Supreme Court has held that the Eighth Amendment does
protect prisoners from deliberate indifference by prison officials
as to conditions which pose an unreasonable risk of damage to an
inmate’s future health. In Helling v. McKinney, 113 S. Ct. 2475,
2480-81 (1993), the Court held that an inmate may obtain injunctive
relief under § 1983 based on exposure to environmental tobacco
smoke in the absence of a present physical injury. But such relief
is conditioned upon a showing that the inmate was exposed to
unreasonably high levels of environmental toxins. See id. The
risk must be of such a level that today’s society would not
tolerate it. See id. at 2482. Indeed, in Whitley v. Hunt, 158
F.3d 882, 884-85 (5th Cir. 1998), we recognized that a prisoner’s
claim for damages based on involuntary exposure to environmental
tobacco smoke, which endangered present and future health, was not
frivolous.
In this case, there remain genuine issues of fact with respect
to whether Herman was exposed to levels of asbestos sufficient to
pose an unreasonable risk of serious damage to his future health,
and with respect to whether the ECDC officials were deliberately
indifferent to the risk of potential future injury from such
exposure. This being said, however, summary judgment may still be
appropriate for the defendants if Herman would not be entitled to
any relief as a matter of law.
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Injunctive and Declaratory Relief
In Helling, the Supreme Court clearly established that, even
in the absence of any present physical injury resulting from
involuntary exposure to environmental conditions posing a serious
health risk, under § 1983, an inmate may obtain injunctive relief
against continued exposure. See Helling, 113 S. Ct. at 2481(stating that “[i]t would be odd to deny an injunction to inmates
who plainly proved an unsafe, life-threatening condition in their
prison on the ground that nothing yet had happened to them.”). The
prohibitive feature of § 1997e(e), requiring physical injury before
recovery, does not apply in the context of requests for declaratory
or injunctive relief sought to end an allegedly unconstitutional
condition of confinement. See Harper v. Showers, 174 F.3d 716, 719
(5th Cir. 1999).
In this case, however, we have no doubt that the district
court properly concluded Herman was not entitled to either
declaratory or injunctive relief, even if he were able to establish
that he was exposed to asbestos during his custodial incarceration
in violation of the Eighth Amendment. Herman’s incarceration at
the ECDC was for a short period of time. Herman’s transfer from
the ECDC to the Dixon Correctional Institute in Jackson, Louisiana,
rendered his claims for declaratory and injunctive relief moot.
See Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084
(5th Cir. 1991). And any suggestion of relief based on the
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possibility of transfer back to the ECDC is too speculative to
warrant relief. See Bailey v. Southerland, 821 F.2d 277, 279 (5th
Cir. 1987). Thus, we conclude that the defendants are entitled to
summary judgment on Herman’s claims for declaratory and injunctive
relief.
Damages
In his second amended complaint, Herman sought, in addition to
injunctive and declaratory relief, money damages for “emotional
distress and mental anguish for fear of the unknown disease, such
as the deadly asbistos [sic].” In his first amended complaint,
Herman sought recovery of money damages for “mental stress, due to
the fear of his life of being subjected to life threatening,
possible illness of these unconstitutional condictions of living
and eating and sleeping while being housed at [ECDC].” And in his
brief before this Court, Herman claims that the defendants’
deliberate indifference “has caused grave emotional and mental
depression.” Herman also claims “physical health problems” but at
no point in his pleadings, proofs, or briefings, does he specify
any physical injury.
As the district court correctly noted, under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(e), Herman may not recover
for emotional or mental damages without a showing of a specific
physical injury. Specifically, § 1997e(e) provides that
No federal civil action may be brought by a
prisoner . . . for mental or emotional injury
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suffered while in custody without a prior
showing of physical injury.
42 U.S.C. § 1997e(e). No adequate showing of a physical injury has
been made in this case which would permit recovery of either
emotional or mental damages. In Harper, we specifically held that
if the plaintiff fails to show a physical injury, § 1997e(e) bars
recovery for mental and emotional damages. See Harper, 174 F.3d at
719. Indeed, in a nearly identical factual scenario, we held that
§ 1997e(e) bars claims for mental and emotional damages caused by
the fear that one’s exposure to asbestos may result in the
development of an asbestos-related disease. See Bernard v. Tong,
No. 98-11082, slip op. at 2-3 (5th Cir. Aug. 9, 1999)(unpublished).
Thus, we conclude that as a matter of law, Herman is not entitled
to money damages for physical injury as he has failed to allege
such an injury, and as a result of failing to so allege, pursuant
to § 1997e(e) and our own precedent, Herman is likewise not
entitled to money damages for the mental and emotional stress,
which knowledge of an increased risk of possible future asbestos-
related illnesses may have caused.
To the extent that Herman’s various complaints can be read as
alleging a claim of damages for the actual increased risk of
developing an asbestos-related injury as a result of his very brief
exposure to asbestos at the ECDC, we decline to characterize such
allegations as sufficiently separate from his claim for emotional
and mental damages so as to constitute an independent category of
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non-emotional or non-mental damages, the recovery of which,
§ 1997e(e) would not prohibit. While we note that in his original
complaint, Herman avers that he was placed in a facility “exposing
the inmates to asbestos,” and that in his first amended complaint
he avers to “being exposed to (asbestos), which has exposed the
plaintiff to a dangerious [sic] dieases [sic],” nowhere in his
complaint or proofs does Herman allege that he is seeking
compensation for the “actual increased risk” of contracting an
asbestos-related disease. Rather, in every claim for damages,
Herman refers only to the “great and mental stress, due to the fear
of his life . . . being subjected to life threating [sic], possible
illness” and the “grave and emotional and mental depression.” His
claims for monetary damages can only be described as for mental and
emotional damages, which as discussed above, he is not entitled to
recover in the absence of a prior showing of physical injury under
§ 1997e(e). We, therefore, reject the contention that by simply
referring to his “exposure to dangerous diseases” Herman has
transformed his claim for mental and emotional damages related to
his fear of contracting a future illness into an independent
category of damages for the value of the actual increased risk that
he may contract such a future illness, which separate category of
damages would not be barred by § 1997e(e). Simply put, we conclude
that even if Herman were able to establish that he was exposed to
asbestos during his custodial incarceration in violation of the
Eighth Amendment, Herman has failed to allege any category of
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monetary damages for which he is entitled to recover due to the bar
to such recovery mandated by § 1997e(e).
Before concluding, we pause to note that with respect to each
of Herman’s other claims for relief (i.e., cold showers, cold food,
unsanitary dishes, insect problems, a lack of adequate clothing,
and the presence of an open “cesspool” near the housing unit),
Herman has sought only damages for the emotional and mental
injuries caused by such conditions. We conclude that Herman is not
entitled to an award of money damages as to these claims for the
same reasons he is not entitled to recover money damages for
exposure to asbestos at the ECDC (that is, failure to allege a
physical injury resulting therefrom). Likewise, for the same
reasons Herman’s claims for injunctive and declaratory relief
regarding his exposure to asbestos must fail (i.e., mootness in
light of his transfer to the Dixon Correctional Institute), we also
conclude that Herman is not entitled to injunctive or declaratory
relief on these additional claims.
CONCLUSION
For all of the reasons discussed above, we conclude that the
various defendants were entitled to judgment as a matter of law on
each and every claim asserted by Herman. Accordingly, we AFFIRM
the judgment of the district court granting summary judgment to the
defendants.
AFFIRMED.
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