IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11334
Summary Calendar
DONALD TODD,
Plaintiff-Appellant,
versus
KATHLEEN HAWK, Etc; ET AL.,
Defendants,
GEORGE E KILLINGER, Warden Federal Correctional Institution
Fort Worth; HECTOR SOLIS, Unite Manager of Fort Worth Unit,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:98-CV-556-Y
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June 12, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Donald Todd, federal prisoner # 90940-012, filed a pro se
civil rights complaint pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
alleging exposure to environmental tobacco smoke (“ETS”) and
asbestos at Federal Medical Center-Fort Worth. Todd’s claims
against Hawk and the other defendants were dismissed pursuant to
*
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that this opinion should not be published and is not precedent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. 00-11334
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28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), leaving only his
claims against Killinger and Solis (“appellees”). Appellees
filed a motion to dismiss, or in the alternative for summary
judgment; the district court dismissed any claims against
appellees in their official capacities and granted summary
judgment on claims made against them in their individual
capacities.
Appellees first argue that Todd’s appeal should be dismissed
because his brief was untimely. The court will allow Todd’s
brief and consider the merits of his appeal. See Fed. R. App. P.
26(b).
Todd argues that the district court erred by not allowing
discovery before granting summary judgment. This court reviews
“a district court’s discovery decisions for abuse of discretion
and will affirm such decisions unless they are arbitrary or
clearly unreasonable.” Moore v. Willis Indep. Sch. Dist., 233
F.3d 871, 876 (5th Cir. 2000). Because Todd never requested
discovery or a continuance pursuant to Fed. R. Civ. P. 56(f) to
seek additional discovery, the district court did not abuse its
discretion by ruling on the summary judgment motion.
Todd also argues that the district court should have
construed his response to the summary judgment motion as a motion
to amend his complaint. This court reviews the denial of leave
to amend a complaint for abuse of discretion. See Halbert v.
City of Sherman, Texas, 33 F.3d 526, 529 (5th Cir. 1994).
Although Todd requested leave to amend if the district court
found his complaint or service improper, he did not indicate that
No. 00-11334
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it should be construed as an actual amendment, and the response
did not name additional defendants, raise new claims, or
otherwise specify the substance of any proposed amendment.
Therefore, the district court did not abuse its discretion.
Todd also argues that the district court should have
provided at “leas[t] 10 days notice before granting Summary
Judgment sua sponte.” However, the district court did not grant
summary judgment sua sponte; appellees had clearly moved for
summary judgment under Fed. R. Civ. P. 56. In addition,
“particularized additional notice of the potential consequences
of a summary judgment motion and the right to submit opposing
affidavits need not be afforded a pro se litigant. The notice
afforded by the Rules of Civil Procedure and the local rules [is]
... sufficient.” Martin v. Harrison County Jail, 975 F.2d 192,
193 (5th Cir. 1992). Appellees served their motion by mail
October 4, 1999, and Todd filed a response October 29, 1999. The
district court issued granted summary judgment September 20,
2000, more than 20 days later. Therefore, Todd’s assertion that
the district court should have provided him 10 days notice before
ruling on the motion is frivolous.
Todd also argues that the district court should have
notified him which of appellees’ alternative motions (to dismiss
or for summary judgment) it would consider so he could reply
properly and submit additional evidence. Todd’s assertion is
factually frivolous. Appellees’ motion was specifically labeled
in the alternative as a motion for summary judgment, it suggested
that because matters outside the pleadings were to be considered
No. 00-11334
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it should be construed as a motion for summary judgment, and Todd
responded by arguing genuine issues of material fact existed.
Thus, Todd was provided adequate notice regarding the alternative
motions.
Liberally construed, see Haines v. Kerner, 404 U.S. 519, 520
(1972), Todd’s brief argues that his own allegations and the
various declarations he submitted presented genuine issues of
material fact: whether he was exposed to levels of asbestos and
ETS posing an unreasonable risk of serious harm, and whether the
risk of harm violates standards of decency. “This court reviews
the grant of a summary judgment motion de novo, using the same
criteria used by the district court.” Fraire v. City of
Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). Summary judgment
is proper if the pleadings, discovery, and any affidavits filed
in support of the motion, 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. See Fed. R. Civ. P. 56(c). The
moving party bears of burden of showing the district court “that
there is an absence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If
the moving party meets the initial burden of showing that there
is no genuine issue, the burden shifts to the nonmovant to set
forth specific facts showing the existence of a genuine issue for
trial. See Rule 56(e).
Todd named appellees in both their official and individual
capacities. Official capacity suits against federal employees
are generally treated as suits against the United States.
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See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). However,
suits against the United States brought under the civil rights
statutes are barred by sovereign immunity. See Affiliated Prof’l
Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.
1999). Bivens actions may be brought against defendants acting
in their individual capacities only. See id. To the extent Todd
sued the appellees in their official capacity, his claim is
barred as a matter of law.
In Helling v. McKinney, 509 U.S. 25 (1993), the Supreme
Court held that the Eighth Amendment protects prisoners from an
official’s deliberate indifference to conditions posing an
unreasonable risk of serious damage to the prisoner’s future
health. Id. at 33-35. If the claim is based on exposure to ETS,
the prisoner “must show that he himself is being exposed to
unreasonably high levels of ETS,” “that the risk of which he
complains is not one that today’s society chooses to tolerate,”
and that officials showed deliberate indifference to the risk.
Id. at 35-36.
A review of the record demonstrates Todd did not allege
anything more than exposure to the “removal of asbestos.” Todd
also did not present any response to declarations submitted by
appellees that asbestos removal used approved procedures and that
monitoring confirmed that airborne asbestos levels were below EPA
requirements. Because there was no genuine issue of material
fact regarding exposure to asbestos, summary judgment was proper
on this claim.
No. 00-11334
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The gravamen of Todd’s ETS claim is that the appellees’
failure to adequately enforce no-smoking policies has resulted in
his exposure to ETS. We pretermit the other elements of a claim
under Helling to address the deliberate indifference element. A
prison official acts with deliberate indifference “only if he
knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to
abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). The
Supreme Court has suggested that the adoption of a smoking policy
would “bear heavily on the inquiry into deliberate indifference.”
Helling, 509 U.S. at 36-37.
The summary judgment evidence reflected that inmates caught
smoking in non-smoking areas were subject to disciplinary action.
Looking at the evidence in the light most favorable to Todd, the
nonmovant, there does not appear to be a genuine issue of
material fact whether the defendants acted with deliberate
indifference. Todd did not present any evidence evincing wanton
actions on the part of the defendants demonstrating deliberate
indifference. The evidence reflected that the defendants did not
disregard the risk but took “reasonable measures to abate it.”
Farmer, 511 U.S. 825 at 847.
The judgment of the district court is AFFIRMED.