UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30554
HENRY KOBNAR DAVIES,
Plaintiff-Appellant,
versus
CHARLES A. FUSELIER; TODD G. LOUVIERE;
JOHN B Z CAPLINGER; MAJORIE ALLEMOND;
BEN J J BANDANZA; MORTON, Deportation
Officer; CANTRELL, Deportation Officer
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
97-CV-2535
_________________________________________________________________
March 15, 2001
Before KING, Chief Judge, ALDISERT* and BENAVIDES, Circuit
Judges.
PER CURIAM**
* Circuit Judge of the Third Circuit, sitting by designation.
** 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this opinion should not be published and is not precedent except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.
Henry Kobnar Davies, an Immigration and Naturalization
Service (“INS”) detainee, appeals from summary judgment in favor
of Sheriff Charles Fuselier, Warden Todd Louviere, INS District
Director John Caplinger, and other defendants. Appellant filed a
complaint under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents, 403 U.S. 388, 389 (1971), alleging that the defendants
violated his constitutional rights while he was detained in the
St. Martin Parish Jail (“SMPJ”) from October 21, 1997 to April 4,
1998.
This appeal requires us to decide (1) whether the notice of
appeal was timely and whether it properly brought up the
underlying judgment on appeal; (2) whether the district court
erred by dismissing Davies’ claims pursuant to § 1915(e) and by
ordering Davies to pay the filing fee in accordance with the
Prison Litigation Reform Act (“PLRA”); (3) whether being detained
for more than five months in a cell with a defective toilet and
leaking walls could establish a violation of constitutional
magnitude; and (4) whether Appellees provided evidence sufficient
to withstand summary judgment on a second-hand smoke claim.
Because we write solely for the parties and not for
publication, we need not set forth a detailed recitation of the
background for this appeal, and we will limit our discussion to
the resolution of the issues presented.
I.
2
Although Davies stated in his notice of appeal that he was
appealing only the district court’s denial of his Rule 59(e)
motion, Davies’ appellate brief makes clear his intent to appeal
from the underlying judgment and not merely the denial of his
motion. See Osterberger v. Relocation Realty Serv. Corp., 921
F.2d 72, 73 n.1 (5th Cir. 1991) (“[A] party who makes a simple
mistake in designating the judgment appealed from does not
forfeit his right of appeal where the intent to pursue it is
clear.”) (internal quotation marks and citation omitted); see
also Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d
665, 667 (5th Cir. 1986) (noting that a Rule 59(e) motion
generally brings up the underlying judgment for review). Thus,
the underlying judgment is properly before the court.
Because he is an INS detainee, Davies is not subject to the
PLRA. Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000)
(reasoning that the PLRA does not apply to INS detainees because
they are not “prisoners” within the meaning of 28 U.S.C. §
1915(h)); Ojo v. INS, 106 F.3d 680, 682 (5th Cir. 1997)(same).
Because § 1915(e) was added by the PLRA, the district court erred
by citing that section as the basis for its partial dismissal of
Davies’ complaint. See Black v. Warren, 134 F.3d 732, 733 (5th
Cir. 1998); R. 1, 235. However, Davies does not challenge the
district court’s § 1915(e) dismissal. Accordingly, he has
abandoned those issues. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). We will affirm the district court’s § 1915(e)
3
dismissal on the alternative grounds of failure to state a claim
pursuant to Rule 12(b)6) of the Federal Rules of Civil Procedure.
See Bickford v. Int’l Speedway Corp., 654 F.2d 1028, 1031 (5th
Cir. 1981) (holding that a dismissal may be affirmed on
alternative grounds).
The district court assessed an initial partial filing fee
and ordered payment of the remainder of the appellate filing fee
pursuant to PLRA §§ 1915(b)(1) and (b)(2). Because Appellant is
not subject to the PLRA, we will vacate the court’s May 15, 2000
order for Davies to pay the appellate filing fee in accordance
with the PLRA and direct the Clerk to return to Davies any money
paid in conformity with that order.
Davies proceeded in forma pauperis(“IFP”)in the district
court, and the district court found that he was entitled to
continue to do so on appeal. Accordingly, we hold that he may
continue to proceed IFP. Rule 24(a)(3), Federal Rules of
Appellate Procedure.
II.
We review a grant of summary judgment de novo and apply the
same criteria that the district court employed. Olabisiomotosho
v. Houston, 185 F.3d 521, 525 (5th Cir. 1999). The facts and any
inferences to be drawn are viewed in the light most favorable to
the nonmovant. Id. “Summary judgment is properly granted if
‘the pleadings, depositions, answers to interrogatories, and
4
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.’”
Id.; Rule 56(c). If the moving party meets the initial burden of
showing that there is no genuine issue of material fact, the
burden shifts to the nonmovant to set forth specific facts
showing the existence of such an issue for trial. Rule 56(e).
The nonmovant cannot satisfy his burden with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)(en banc).
An INS detainee is entitled to the same rights afforded to a
pretrial detainee. Edwards v. Johnson, 209 F.3d 772, 778 (5th
Cir. 2000). “[A] pretrial detainee’s constitutional claims are
considered under the due process clause instead of the Eighth
Amendment.” Edwards, 209 F.3d at 778 (citations omitted). In
analyzing constitutional challenges raised by pretrial detainees,
the court must first determine whether to classify the challenge
as an attack on a “condition of confinement” or an “episodic act
or omission.” Id. (internal quotations and citations omitted).
Because Appellant’s claims concern the general conditions at the
SMPJ and not a particular act, his claims can be characterized as
challenges to the conditions of confinement. See id.
A court considering a pretrial detainee’s claims concerning
the constitutionality of conditions of confinement “must
5
determine whether the conditions complained of are imposed for
the purpose of punishment.” Hamilton v. Lyons, 74 F.3d 99, 104
(5th Cir. 1996) (citation omitted). “Because they have not yet
been convicted of the crime with which they are charged, pretrial
detainees have a due process right not to be punished for that
crime.” Id. (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16
(1979)). A punitive purpose is established by direct proof of an
expressed intent to punish the pretrial detainee for the crime
charged; a punitive purpose may also be inferred if the
challenged condition is not “reasonably related to a legitimate
governmental objective.” Hamilton, 74 F.3d at 104 (citations
omitted). However, even if the pretrial detainee establishes
evidence of a punitive purpose, in conditions of confinement
claims, there is “a de minimis level of imposition with which the
Constitution is not concerned.” Id. at 106 (citation omitted).
III.
As an initial matter, Appellant does not challenge the
district court’s dismissal of his claims that he was
unjustifiably placed in lockdown, that he was given only biscuits
and watery milk for breakfast during lockdown, and that the water
was cut off for fifteen hours during lockdown. We deem these
issues abandoned. See Yohey, 985 F.2d at 225.
6
Appellant argues that the district court erred in granting
summary judgment on his defective toilet and leaking roof and
walls claims. He asserts that for five months he was subjected
to a daily stench caused by toilets that backed up with human
waste. He also asserts that the walls and roof in his cell
leaked dirty rainwater. The district court determined that
Davies did not allege that his toilet overflowed or retained
waste water for a substantial length of time, that he was forced
to contact the waste water, that he was denied the opportunity to
clean the area, or that he was exposed to disease as a result of
the alleged defective toilet. See R. 3, 556-57. With respect to
the leaking roof and walls, the district court determined that
Davies did not allege that the leaking occurred regularly or that
he experienced illness as a result of the conditions. See id.
at 558. The district court concluded that the conditions were
not imposed to inflict punishment on Davies and that the
conditions were incident to the management of the detention
facility. See id. at 557-58. We are persuaded that the court did
not err in these determinations.
IV.
Appellant contends that the defendants violated his
constitutional rights by housing him for over five months in an
environment in which he was exposed to second-hand smoke. He
7
contends that this exposure caused headaches, throat irritation,
and burning eyes and exposed him to potential future health
risks, such as cancer. He asserts that the ventilation system
was clogged and was not cleaned and that the Appellees ignored
his requests for housing in a nonsmoking dormitory. The
defendants counter that Davies did not show that he was exposed
to excessive levels of second hand smoke, that any exposure to
this caused the symptoms that he experienced, and that the
symptoms he experienced were serious enough to implicate
constitutional concerns.
In Helling v. McKinney, 509 U.S. 25, 33-35 (1993), the Court
recognized that the Eighth Amendment affords protection to an
inmate from present and future harm caused by exposure to second
hand smoke. In Whitley v. Hunt, 158 F.3d 882, 887-88 (5th Cir.
1998), and in Rochon v. Angola, 122 F.3d 319, 320 (5th Cir.
1997), cert. denied, 523 U.S. 1025 (1998), this court also
recognized that an inmate’s claim of unwilling exposure to second
hand smoke potentially stated a claim for relief under the Eighth
Amendment.
The district court granted summary judgment after concluding
that Davies did not produce competent summary judgment evidence
to prove intent or that the exposure was not reasonably related
to a legitimate goal. It determined that Davies’ five-month
exposure in a jail that had an adequate operating ventilation
system did not constitute a due process violation. The court
8
found that Davies did not present evidence that he was exposed to
excessive levels of second hand smoke, that his symptoms directly
resulted from this exposure or that he requested segregation from
the smoking inmates.
We are not persuaded that the district court erred in
determining that the five months exposure, under the
circumstances here present (including an adequate ventilation
system), did not violate the Fourteenth Amendment. Therefore,
the court appropriately entered summary judgment on this claim.
* * * * *
We have considered all contentions presented by the parties
and conclude that no further discussion is necessary. We affirm
the judgment of the district court and direct the Clerk to refund
Appellant’s filing fee as discussed in Part I above.
AFFIRMED.
9
Davies v. Fuselier
Combined Opinion