UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60674
GEORGE T. CALLICUTT,
Plaintiff-Appellant,
versus
JAMES ANDERSON; FRED CHILDS; I.A. GILMORE; TONY COMPTON; TERRY
HOLLOWAY; NATHANIEL CANNON; JAMES HOLMAN; NORS KENNEDY, Captain;
CALVIN PHIPPS, Captain; EARNEST LEE; LETHA NATHAN, Captain,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:00-CV-46-LN)
_________________________________________________________________
September 11, 2002
Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
At issue is whether the district court erred in dismissing
this in forma pauperis 42 U.S.C. § 1983 action by George Callicutt,
Mississippi prisoner # 84125, following a bench trial and based on
its conclusion that prison officials had not acted with deliberate
indifference. AFFIRMED.
I.
Callicutt sued those officials for claimed Eighth Amendment
violations because he was exposed to environmental tobacco smoke
*
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this opinion should not be published and is not precedent except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.
(ETS). After an unsuccessful appeal from the denial of Callicutt’s
summary judgment motion (dismissed for lack of jurisdiction), see
Callicutt v. Anderson, No. 01-60038 (5th Cir. 21 August 2001)
(unpublished), the parties consented to proceed before a magistrate
judge.
Following a bench trial, the complaint was dismissed with
prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Callicutt v.
Anderson, No. 3:00-CV-46-LN (S.D. Miss. 11 July 2001) (unpublished)
(Final Judgment). The court found: all witnesses testified
truthfully; although prison policy prohibited smoking in
Callicutt’s unit, the single guard assigned there during a shift
could not always prevent prisoners from violating the rule;
Callicutt “ha[d] been exposed to some level of second hand smoke”,
but Defendants’ expert testified Callicutt’s medical conditions had
not demonstrated he had been harmed by such exposure; when a
prisoner was caught smoking, he was issued a Rules Violation
Report. Callicutt v. Anderson, No. 3:00-CV-46-LN, slip op. at 2-3
(S.D. Miss. 11 July 2001) (unpublished). Accordingly, the court
held: prison officials did not act with deliberate indifference,
because they implemented a policy designed to eliminate ETS that
was enforced to the best of the guards’ ability given the staffing
levels. Id. at 3.
II.
We review a § 1915(e)(2) dismissal for abuse of discretion.
See Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001). (In
this regard, and because the dismissal follows a bench trial,
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factual findings are reviewed for clear error; issues of law, de
novo. See FED. R. CIV. P. 52(a); Seal v. Knorpp, 957 F.2d 1230,
1234 (5th Cir. 1992).) Further, Callicutt certified that no trial
transcript was necessary and does not contest the factual findings.
Therefore, only the conclusions of law are at issue.
A two-prong test is used to determine whether ETS exposure
violates a prisoner’s Eighth Amendment rights. He must: (1) prove
he is “being exposed to unreasonably high levels of ETS”; and (2)
show prison officials demonstrated “deliberate indifference” to his
plight. Helling v. McKinney, 509 U.S. 25, 35-36 (1993).
First, sporadic and fleeting ETS exposure, even though it
results in discomfort such as coughing and nausea, does not
constitute “unreasonably high levels of ETS”. See Richardson, 260
F.3d at 498.
Second, deliberate indifference requires a finding of
“obduracy and wantonness, not inadvertence or error in good faith”.
Whitley v. Albers, 475 U.S. 312, 319 (1986).
[A] prison official cannot be found liable
under the Eighth Amendment ... unless the
official knows of and disregards an excessive
risk to inmate health or safety; the official
must both be aware of facts from which the
inference could be drawn that a substantial
risk of serious harm exists, and he must also
draw the inference.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). In evaluating
deliberate indifference to ETS, the following factors should be
considered: the adoption of a smoking policy; the administration
of that policy; and “the realities of prison administration”. See
Helling, 509 U.S. at 36-37 (emphasis added).
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The magistrate judge did not abuse his discretion. Prison
policy prohibits smoking in Callicutt’s unit; and the court found
both that guards did not ignore smoking prisoners and that they
“enforced [the policy] to the best of their ability”. Callicutt v.
Anderson, No. 3:00-CV-46-LN, slip op. at 3 (S.D. Miss. 11 July
2001) (unpublished). In the light of this finding following a
bench trial in which the magistrate judge could best evaluate the
credibility of the witnesses, and especially because Callicutt has
not challenged those findings, it could not be an abuse of
discretion for the magistrate judge to conclude Callicutt failed to
prove deliberate indifference and, therefore, to dismiss his
complaint.
III.
For the foregoing reasons, the dismissal is
AFFIRMED.
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