IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20015
Summary Calendar
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CURTIS MACK LEWIS,
Plaintiff-Appellant,
v.
JOHNNY KLEVENHAGEN, Sheriff; JAMES A. COLLINS,
Director, Texas Department of Criminal Justice,
Institutional Division,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-94-2636)
_________________________________________________________________
March 22, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Curtis Mack Lewis appeals the dismissal as frivolous under
28 U.S.C. § 1915(d) of his civil rights action against Johnny
Klevenhagen, the Sheriff of Harris County, Texas, and James A.
Collins, then the Director of the Texas Department of Criminal
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Justice (TDCJ), in their official and individual capacities. We
affirm in part and vacate and remand in part.
Lewis alleged that, through the acts of his subordinates,
Sheriff Klevenhagen subjected him to tuberculosis by housing him
with an infected inmate at the Harris County Jail. After his
transfer to Diboll Detention Center in Angelina County, Lewis
tested positive for tuberculosis and received medication1 which
had serious side effects. Lewis asserted that the failure to
provide him with a safe living environment violated his rights
under the Fifth and Eighth Amendments. Lewis attributed the
constitutional violations to the defendants' failure to train and
supervise prison personnel. He sought $50,000 in compensatory
damages and $100,000 in punitive damages.
The magistrate judge issued an order for a more definite
statement indicating specific questions that should be addressed.
In his response, Lewis stated that Sheriff Klevenhagen knew about
the tuberculosis epidemic in the Harris County Jail and did
nothing to provide separate housing for the infected inmates.
Lewis alleged that he was housed in the same pod for
approximately six months with an inmate who had tuberculosis and
that they slept no more than four feet apart. According to
Lewis, Collins was responsible for the TDCJ medical personnel who
gave Lewis medication to combat tuberculosis. Lewis developed
1
Lewis received isonicotinic acid hydrazide (INH), used
for prevention of tuberculosis.
2
nausea, kidney problems, and shortness of breath as a result of
the medication.
The district court concluded that, even if Klevenhagen knew
about Lewis' cellmate's tuberculosis, "there [was] no indication
that any jail or prison official intended to expose him to the
disease." Further, the district court stated that it mattered
not whether Lewis was a convicted felon or a pretrial detainee;
Lewis did not allege facts to support a claim of deliberate
indifference to his serious medical needs because he received
adequate medical care. The district court dismissed the action
with prejudice as frivolous2 and admonished Lewis that he might
be sanctioned if he continued to file meritless claims. Lewis
filed a timely notice of appeal.
On appeal, Lewis asserts that the district court erred in
dismissing his complaint as frivolous. A complaint is frivolous
if it lacks an arguable basis in law or fact. Denton v.
Hernandez, 504 U.S. 25, 31-33 (1992); 28 U.S.C. § 1915(d). This
court reviews the district court's dismissal as frivolous for an
abuse of discretion. Id. It is inappropriate to dismiss a claim
as frivolous if, with additional factual development, the
"allegations may pass section 1915(d) muster." Eason v. Thaler,
14 F.3d 8, 10 (5th Cir. 1994). Claims should not be dismissed as
factually frivolous without further factual development unless
2
The district court stated that the claim had “no
arguable basis in law and fact, and no realistic chance of
ultimate success.” The proper standard is no arguable basis in
law or fact. See Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir.
1993).
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they are "pure fantasy or based upon a legally inarguable
position." Id.
The district court analyzed Lewis' claim of unconstitutional
conditions of confinement under the Due Process Clause and the
Eighth Amendment and found that Lewis had alleged no more than
negligence. Lewis clarifies in his brief on appeal that he was a
pretrial detainee at the time he was exposed to and contracted
tuberculosis at the Harris County Jail. This court has recently
enunciated the standard in an action alleging that a pretrial
detainee's conditions of confinement violated his constitutional
rights. See Hare v. City of Corinth, ___ F.3d ___ (5th Cir. Jan.
29, 1996, No. 93-7192), 1996 WL 34766 (en banc).
The State has the responsibility under the U.S. Constitution
to tend to the essentials of pretrial detainees' well-being. Id.
at *4. "The constitutional rights of a pretrial detainee . . .
flow from both the procedural and substantive due process
guarantees of the Fourteenth Amendment." Id. at *5 (citing Bell
v. Wolfish, 441 U.S. 520 (1979)). The protections of the Due
Process Clause, whether procedural or substantive, are not
triggered by negligent inaction. See Davidson v. Cannon, 474
U.S. 344, 348 (1986).
"[U]nder Bell, a pretrial detainee cannot be subjected to
conditions or restrictions that are not reasonably related to a
legitimate governmental purpose." Hare, 1996 WL 34766 at *6.
The Bell test applies "when a pretrial detainee attacks general
conditions, practices, rules, or restrictions of pretrial
4
confinement." Id. at *10. In the absence of an established rule
or restriction, the detainee "must show that the jail official's
acts or omissions were sufficiently extended or pervasive, or
otherwise typical of extended or pervasive misconduct by other
officials, to prove an intended condition or practice to which
the Bell test can be meaningfully applied.” In such "jail
condition" cases, "the jail officials' state of mind is not a
disputed issue.” Id. at *11. The State's intent to subject a
detainee to inhumane conditions of confinement or abusive jail
practices is "presumed when it incarcerates the detainee in the
face of such known conditions and practices." Id. at *12.
When a pretrial detainee bases his claim on a jail
official's "episodic acts or omissions," the standard of
subjective deliberate indifference enunciated in Farmer v.
Brennan, 114 S. Ct. 1970, 1980 (1994), is the measure of
culpability. Id. at *10. In Farmer, the Court held "that a
prison official may be held liable under the Eighth Amendment for
denying humane conditions of confinement 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, 114 S. Ct. at 1984.
Lewis alleged that he tested negative for tuberculosis when
he entered Harris County Jail and contracted tuberculosis from
his cellmate because prison officials failed to provide a healthy
environment. He asserted that Sheriff Klevenhagen, as well as
other unknown jail personnel, knew that there was a problem with
5
the spread of tuberculosis. Lewis stated that even the
television news media had reported that there was a tuberculosis
epidemic in the Harris County Jail. Further, a policy that
every inmate entering the jail undergo a medical examination was
in place. Lewis alleged that prison officials had to know that
he was housed with an inmate who had tuberculosis because they
distributed medication to infected inmates. Yet, nothing was
done to quarantine infected inmates or to provide separate
housing.
The district court abused its discretion in dismissing
Lewis' claim as frivolous without further factual development.
His claim is not based on fantasy or upon a legally inarguable
position, and it merits further factual development. See Eason,
14 F.3d at 10. Based on the facts as presented, it is unclear
whether the reasonableness standard or the deliberate-
indifference standard applies to Lewis' claim. Lewis does not
appear to have alleged an episodic act or omission that would
warrant analysis under the deliberate indifference standard.
Further factual development will indicate whether Lewis has
alleged a condition, practice, or misconduct that was
sufficiently extended or pervasive to demonstrate an intended
condition or practice.
The judgment of the district court on the conditions-of-
confinement claim is vacated and the case remanded for further
proceedings and the application of the standard announced in
Hare. Lewis presents no arguments on appeal concerning the claim
6
regarding the medication and its side effects that he raised in
the district court; therefore, those issues are deemed abandoned.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). That portion of the district court's
judgment concerning the medical claim is affirmed.
AFFIRMED in part; VACATED and REMANDED in part.
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