Murrell v. Chandler , 109 F. App'x 700 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004
Charles R. Fulbruge III
Clerk
No. 04-40400
Summary Calendar
GETZELL JOHNSON MURRELL, SR.,
Plaintiff-Appellant,
versus
ERNEST V. CHANDLER, Warden; MARIE J. CARTER, Administrative
Warden; AL HAYNES, Associate Warden; RONALD G. THOMPSON,
Regional Director; O. IVAN WHITE, Assistant Regional
Director; ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-184
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Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Getzell Johnson Murrell, federal inmate # 87468-011, appeals
the dismissal of his suit filed pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Murrell’s argument that he was not required to exhaust his
administrative remedies because he sought only monetary damages
is unavailing. See Booth v. Churner, 532 U.S. 731, 741 (2001);
*
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this opinion should not be published and is not precedent except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.
No. 04-40400
-2-
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001); 42
U.S.C. § 1997e. Murrell’s argument that the district court erred
when it determined that his claims of denial of access to the
courts and denial of an adequate law library were time-barred
lacks a factual predicate. The district court did not rule that
those claims were time-barred.
Murrell argues that the district court erred when it
dismissed Murrell’s equal protection claim relative to his
longevity wages for failure to state a claim for which relief
could be granted. The dismissal was not error because Murrell’s
equal protection claim was not based on discriminatory treatment
due to some personal or class characteristic. See Thompson v.
Patteson, 985 F.2d 202, 207 (5th Cir. 1993); see also 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A.
Murrell also argues that the district court erred when it
dismissed his claim that prison officials violated his Eighth
Amendment rights against cruel and unusual punishment by exposing
him to environmental tobacco smoke (ETS). In Helling v.
McKinney, 509 U.S. 25, 35-36 (1993), the Supreme Court addressed
the issue of exposure to ETS and held that the prisoner stated a
cause of action under the Eighth Amendment when he alleged that
prison officials were deliberately indifferent to his serious
medical needs by exposing him to ETS which posed an unreasonable
risk to his health. With respect to its qualified-immunity
analysis, the Supreme Court noted that determining whether
No. 04-40400
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conditions of confinement violate the Eighth Amendment “requires
a court to assess whether society considers the risk that the
prisoner complains of [ETS] to be so grave that it violates
contemporary standards of decency to expose anyone unwillingly to
such a risk.” Id. at 36.
In Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir.
1997) this court recognized that a prisoner states an Eighth
Amendment claim if he alleges that he was exposed to ETS for a
sustained time, even if the ETS had not already harmed his
health. To the extent that Murrell alleged that his future
health was harmed by prolonged exposure to ETS and that prison
officials were deliberately indifferent to his health, he states
a claim for which relief may be granted. See Helling, 509 U.S.
at 37; Rochon, 122 F.3d at 320; Whitley v. Hunt, 158 F.3d 882,
888 (5th Cir. 1998). Accordingly, the portion of the district
court’s judgment dismissing Murrell’s Eighth Amendment claim
relative to his exposure to ETS for failure to state a claim for
which relief may be granted is VACATED, and the case is REMANDED
for appropriate proceedings. The remainder of the district
court’s judgment is AFFIRMED.
AFFIRM IN PART, VACATE AND REMAND IN PART.