IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40210
Summary Calendar
RONALD M. HOENIG,
Plaintiff-Appellant,
versus
JAMES A. COLLINS, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; HERBERT L. SCOTT, Senior Warden,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
(G-94-CV-265)
July 29, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Ronald M. Hoenig (Hoenig), a prisoner of
the State of Texas, proceeding pro se and in forma pauperis, filed
this civil rights action against James A. Collins, the Director of
*
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this opinion should not be published and is not precedent except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.
the Texas Department of Criminal Justice (TDCJ), and Herbert L.
Scott, the Senior Warden of the Ramsey One Unit, alleging a
violation of his Eighth Amendment rights. Hoenig stated that a
project was begun in October or November 1993 employing inmates to
remove asbestos from the ceilings of the Ramsey One Unit where he
was confined. The work area was separated from the remainder of
the unit by a single sheet of plastic with a slit from top to
bottom to provide access for workers and free airflow. Hoenig
alleged that he has been exposed constantly to the asbestos, dust,
and debris since the work began. He alleged he was housed
approximately twelve feet from the work area and was required to
walk within six inches of the sheet of plastic on his way to the
shower, his work assignment, and the dining area. He alleged that
the defendants had to know that the dust from the asbestos presents
a risk of contracting asbestosis and mesothelioma and blatantly
disregarded his health and safety by exposing him to a dangerous
substance. Hoenig sought monetary damages and equitable relief.
In response to the magistrate judge’s order to submit a more
definite statement, Hoenig stated that for some time asbestos from
the ceiling had fallen into his food. After the removal work
began, prison officials did not provide protective gear, and he had
no choice but to breathe the particles floating in the air. In his
second response to the magistrate judge’s interrogatories, Hoenig
stated he was exposed to the class A carcinogen from 1992-1994, he
had not been diagnosed with asbestosis, every inmate on the unit
2
was exposed, and he was retaliated against for seeking redress in
the courts.
Hoenig filed a motion for a temporary restraining
order/preliminary injunction and a supporting brief, alleging that
prison officials retaliated against him for filing this lawsuit in
the following manner: he was transferred several times from unit
to unit far from his family, his legal materials were confiscated
during each move, he had no access to a law library or mail room to
mail his pleadings, and he was locked in a cell for 24 hours a day.
Hoenig added that, even though he was a minimum security inmate, he
was housed in a single cell surrounded by handcuffed, close-custody
inmates; his movement and privileges were severely restricted; and
he was deprived of medication for his heart. He feared for his
safety and asked the district court to issue an order prohibiting
these acts of retaliation.
The district court did not rule on Hoenig’s motion, and
approximately ten months later, Hoenig filed a second motion for
injunctive relief. He reiterated his claims of retaliation through
multiple transfers, punishment in administrative segregation
without a hearing, deprivation of his legal materials, and loss of
privileges. Hoenig feared for his safety and asserted that there
was a real chance he would be injured or killed. He asked the
district court to construe his allegations of additional
violations, in particular the retaliation and denial-of-access-to-
courts claims, as amendments to his complaint.
3
The magistrate judge determined that Hoenig did not allege
that he was injured from his exposure to asbestos and that his
allegations that he could suffer unspecified harm at a future date
was not of constitutional magnitude. Further, Hoenig had not
alleged that the defendants intentionally exposed him to asbestos
to harm him. The magistrate judge recommended that the district
court dismiss the case as frivolous.
Hoenig filed objections to the magistrate judge’s report and
recommendation. He countered the magistrate judge’s determination
that he had alleged no harm by referring to his more definite
statement that he had developed a cough and that his liver test was
two hundred points above normal. Moreover, Hoenig repeated that
the defendants were responsible for the project and that the
inmates would not have removed asbestos without the warden’s
knowledge. He asserted that he did not allege that the defendants
affirmatively planned to expose him to asbestos; however, it was
his belief that the defendants decided that they would not spend
the money to do the job right because only convicted felons were
affected.
The district court adopted the magistrate judge’s report and
dismissed the action with prejudice pursuant to 28 U.S.C. §
1915(d).1
1
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).
4
Hoenig asserts that he was exposed to solid asbestos and
asbestos dust during its removal from his unit by other inmates.
Relying on Helling v. McKinney, 509 U.S. 25 (1993) (a secondary
smoke case), he contends that the exposure was of constitutional
magnitude because asbestos is a class A carcinogen. Hoenig argues
that the defendants had first hand knowledge concerning the removal
of asbestos because the Director would have to approve the
appropriation, and the warden would have to approve all maintenance
work of that magnitude.
To determine if the Eighth Amendment has been violated, the
court applies a subjective component to the deliberate indifference
standard. Helling at 32. “[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 v. Brennan, 114 S.Ct.
1970, 1984 (1994). To constitute an Eighth Amendment violation,
such failure to take reasonable measure must be subjectively
deliberately indifferent. Hare v. City of Corinth, 74 F.2d 633,
649-50 (5th Cir. 1996). Inmates are entitled to relief from
threats to their safety; they “need not await a tragic event” in
the future. Helling, 509 U.S. at 33.
In addition to the subjective factor, there is an objective
factor. Id. at 35. The inmate must show that he himself is being
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exposed to the substance. Id. Moreover, a violation of “the
Eighth Amendment requires more than a scientific and statistical
inquiry into the seriousness of the potential harm and the
likelihood that such injury to health will actually be caused by
exposure” to toxic substances. Id. at 36. “[T]he prisoner must
show that the risk of which he complains is not one that today’s
society chooses to tolerate.” Id.
In light of Helling, Hoenig’s Eighth Amendment claim that he
was exposed to a risk of future harm is not facially “fanciful,
fantastic, and delusional.” See Denton v. Hernandez, 504 U.S. 25,
32-33 (1992). On the present record, it is not now possible to say
that Hoenig’s claim lacks any arguable basis in fact or law. While
further development may well show that Hoenig will unarguably be
unable to demonstrate the requisite deliberate indifference by
Scott or Collins, or fail to meet some other required element of
his claim, such a determination is premature on this record, as is
a determination that Hoenig will be entitled to no prospective
relief. Further development of the facts through a hearing of some
sort——possibly one under Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985)——and/or a response by defendants is called for before
dismissal would be appropriate.
Hoenig also asserts that the district court erred in
dismissing his complaint without allowing him to amend his
pleadings. He specifically wanted to include claims of 1)
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retaliation through multiple transfers and segregated confinement
for filing this and other actions and 2) denial of access to the
courts through confiscation and loss of his legal materials. He
contends that so many documents are missing he is no longer able to
challenge his criminal conviction.
“A party may amend the party’s pleading once as a matter of
course at any time before a responsive pleading is served . . . .”
Fed. R. Civ. P. 15(a). The defendants were not served; therefore,
Hoenig could exercise his right to amend automatically. See Zaidi
v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir. 1984).
The record at this stage does not reflect that all the claims
Hoenig desired to add by amendment lack any arguable basis in law
or fact. See Lewis v. Casey, No. 94-1511, June 24, 1996, 1996 WL
340797 (US); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert.
denied, 476 U.S. 1117 (1986). Further development may show them to
be deficient, either as to personal involvement of Scott or Collins
or otherwise, but the district court never even addressed Hoenig’s
attempt to amend, and Hoenig was never afforded an opportunity to
flesh these allegations out. See Eason v. Thaler, 14 F.3d 8, 9-10
(5th Cir. 1994).
The district court’s dismissal of Hoenig’s suit is vacated as
premature and the cause is remanded for further proceedings not
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inconsistent herewith.2
VACATED and REMANDED
2
Hoenig’s motion in this Court for temporary restraining order
and/or temporary injunction, a motion that was filed in the first
instance in the district court but not acted on by it, is denied by
this Court without prejudice to the district court’s action on the
similar motion before it; the district court on remand should
expressly rule on such motion.
8