United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 11, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40924
Summary Calendar
WILLIAM HENRY HARRISON
Plaintiff - Appellant
v.
JB SMITH, Smith County Sheriff, GARY PINKERTON,
Captain, Smith County Jail, SMITH COUNTY TEXAS
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CV-602
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Before KING, Chief Judge, and HIGGINBOTHAM and WIENER, Circuit
Judges.
PER CURIAM:*
William Henry Harrison, Texas prisoner # 07725-078, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous and for failure to state a claim. Harrison argues that
he has adequately stated nonfrivolous claims for unsafe
conditions of confinement, including a malfunctioning cell door
that would not open electronically and, on one occasion, could
*
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that this opinion should not be published and is not precedent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. 03-40924
-2-
not be opened manually for a four-hour period; inoperative smoke
detectors and fire alarms; lack of insect extermination services;
and an unhealthy environment created by allowing other prisoners
to smoke. He also contends that 28 U.S.C. § 1915A is
unconstitutional because it authorized the district court to
review and dismiss his complaint prior to its service on the
defendants. Finally, Harrison asserts that the district court
judge should have recused himself from the action due to
allegations Harrison made against the judge as a result of his
presiding over Harrison’s criminal trial.
The district court did not err in determining that
Harrison’s assertions that the conditions of his confinement
violated constitutional standards were frivolous and failed to
state a claim for which relief could be granted. The district
court did not err in refusing to allow Harrison to use his
objections to the magistrate judge’s report and recommendation to
further amend his amended complaint. See United States v.
Armstrong, 951 F.2d 626, 630 (5th Cir. 1992). The vague and
speculative conclusion in Harrison’s amended complaint that
allowing other prisoners to smoke created an unhealthy
environment did not sufficiently state a claim for exposure to
environmental tobacco smoke. See Helling v. Montana, 509 U.S.
25, 35-36 (1993). Harrison’s assertion that his cell door had to
be opened manually, such that he had to wait to be released each
day and, on one occasion, was locked in his cell for over four
No. 03-40924
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hours, does not state a constitutional claim. See Herman v.
Holiday, 238 F.3d 660, 664 (5th Cir. 2001). Finally, his
contention that he was confined in unsafe conditions due to the
failure of the jail to obtain extermination services for insects
and to ensure that the fire and smoke alarm systems were
operating properly fails because he has not stated a claim for
any compensable injuries. Although Harrison alleges that he
suffered physical and psychological injuries from the unsafe
conditions, he admits that he did not suffer any insect bites and
that no fires occurred while he was housed at the jail.
Therefore, the alleged physical injuries necessarily are a
manifestation of his psychological reaction to what he perceived
to be an unsafe condition. Any deficiencies in the fire alarm or
smoke detection systems or the jail’s pest-control measures did
not physically harm him. Without a prior showing of physical
injury, Harrison may not maintain an action for his mental or
emotional injuries. 42 U.S.C. § 1997e(e). Likewise, he has not
stated a claim sufficient for the award of nominal damages. Cf.
Carey v. Piphus, 435 U.S. 247, 266 (1978) (providing that nominal
damages could be awarded for the denial of procedural due
process). Because Harrison has been moved to another jail, his
claims for declaratory and injunctive relief are moot. See
Herman, 238 F.3d at 665-66.
Harrison has no constitutional right to bring actions which
fail to state a claim or are frivolous. Therefore, his
No. 03-40924
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contention that 28 U.S.C. § 1915A is unconstitutional because it
denies his right of access to the courts lacks merit. See Martin
v. Scott, 156 F.3d 578, 580 n.2 (5th Cir. 1998).
Although Harrison requested the district court clerk to
reassign his case to another judge and stated in his objections
to the report and recommendation that the magistrate judge should
recuse herself, he did not move for the district court judge to
recuse himself. Because Harrison did not properly raise this
issue before the district court and has not shown exceptional
circumstances requiring this issue to be addressed for the first
time on appeal, we do not entertain his untimely recusal
challenge. See Clay v. Allen, 242 F.3d 679, 681 (5th Cir. 2001).
AFFIRMED.