Rochon v. City of Angola,et al

United States Court of Appeals,

Fifth Circuit.

No. 97-30166

Summary Calendar.

Raymond ROCHON, Plaintiff-Appellant,

v.

CITY OF ANGOLA, LOUISIANA; State of Louisiana; John P. Whitley,
Warden, Louisiana, State Penitentiary; Richard Stalder, Secretary;
Edwin Edwards; Burl Cain, Warden, Louisiana State Penitentiary,
Defendants-Appellees.

Sept. 24, 1997.

Appeals from the United States District Court for the Middle
District of Louisiana.

Before DUHÉ, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:

Raymond Rochon, Louisiana prisoner # 93625, filed a civil

rights complaint under 42 U.S.C. § 1983 against the City of Angola,

Louisiana; the State of Louisiana; former Governor Edwin W.

Edwards; Secretary of the Department of Corrections Richard

Stalder; Warden Burl Cain; and Warden John P. Whitley. Rochon

complained that since the beginning of his incarceration in 1981,

he has been required to live and work "in environments filled with

tobacco smoke." Rochon asserted that even if the tobacco smoke had

not already harmed his health, the smoke posed a threat to his

health in the future.

The district court granted the motion of defendants Whitley,

Cain, and Stalder, based on qualified immunity, to have Rochon's

complaint dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure

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to state a claim. A Rule 12(b)(6) dismissal will be affirmed only

if "it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief."

McCormack v. National Collegiate Athletic Ass'n, 845 F.2d 1338,

1343 (5th Cir.1988) (internal quotation and citation omitted).

This court conducts a bifurcated analysis to assess whether

a defendant is entitled to qualified immunity. Harper v. Harris

County, Texas, 21 F.3d 597, 600 (5th Cir.1994). The first step is

to determine whether the plaintiff has alleged a violation of a

clearly established constitutional right. This court uses

"currently applicable constitutional standards to make this

assessment." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th

Cir.1993). If the court finds no constitutional injury, it need

not address the issue of qualified immunity. Quives v. Campbell,

934 F.2d 668, 671 (5th Cir.1991). The second step is to determine

"whether the defendant's conduct was objectively reasonable."

Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993); see also

Harper, 21 F.3d at 600. The reasonableness of the conduct must be

assessed in light of the law as it existed at the time of the

conduct in question. Harper, 21 F.3d at 601.

In Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125

L.Ed.2d 22 (1993), the Supreme Court addressed the issue of

exposure to environmental tobacco smoke (ETS) and held that the

prisoner stated a cause of action under the Eighth Amendment by his

allegation that prison officials were deliberately indifferent to

his serious medical needs by exposing him to ETS which posed an

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unreasonable risk to his health. See Helling, 509 U.S. at 35-36,

113 S.Ct. at 2481-82. With respect to the qualified-immunity

analysis, the Supreme Court noted that determining whether

conditions of confinement violate the Eighth Amendment "requires a

court to assess whether society considers the risk that the

prisoner complains of [ETS] to be so grave that it violates

contemporary standards of decency to expose anyone unwillingly to

such a risk." Helling, 509 U.S. at 36, 113 S.Ct. at 2481. Rochon

has alleged that he was forced to live and work in environments

filled with tobacco smoke and that the prison smoking policies

amounted to an unreasonable risk and deliberate indifference to his

health. It is not beyond doubt that he can prove no set of facts

establishing both of his allegations showing that this situation

would not be within contemporary standards of decency. Helling,

509 U.S. at 36, 113 S.Ct. at 2481. Accordingly, the portion of the

district court's judgment dismissing defendants Whitley, Cain, and

Stalder under Rule 12(b)(6) is VACATED and REMANDED for appropriate

proceedings. The remainder of the district court's judgment is

AFFIRMED.

AFFIRM IN PART, VACATE AND REMAND IN PART.

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