Lacy v. Collins ( 1995 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-20033
(Summary Calendar)
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ANTONIO M LACY and
DAVID ALLEN WALLIS,
Plaintiffs-Appellants,
versus
JAMES A COLLINS,
Director, Texas Department
of Criminal Justice, Institutional
Division, ET AL.,
Defendants-Appellees.
_______________________________________________
Appeal from the United States District Court
For the Southern District of Texas
CA H 94 2515
_______________________________________________
August 8, 1995
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Antonio Lacy, an inmate of the Texas Department of Criminal
Justice's Institutional Division, appeals the district court's
dismissal, under 28 U.S.C. § 1915(d) (1988), of his pro se, in
forma pauperis civil rights suit. We affirm.
*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
I
Antonio Lacy filed a complaint under 42 U.S.C. § 1983 (1988),
alleging that the conditions of his confinement violate his Eighth
Amendment rights. Specifically, Lacy alleges that prison officials
(1) allow HIV-positive inmates to masturbate and ejaculate in the
prison dayroom, contaminating the drinking fountain and other
surfaces; (2) allow inmates to expose themselves to female
employees, potentially discouraging the female employees from
responding to inmates' emergency calls; (3) allow inmates to use
vulgar and indecent language in speaking to prison employees and
other inmates; and (4) allow inmates to play televisions and radios
at high volume. In his complaint, Lacy alleged that prison
officials do not enforce prison regulations designed to prevent
these problems, despite his and other inmates' complaints. After
Lacy responded to an Order for a More Definite Statement, the
district court dismissed Lacy's complaint as frivolous under 28
U.S.C. § 1915(d), concluding that all four claims had no arguable
basis in law. Lacy appeals, arguing that the district court abused
its discretion in dismissing his complaint under § 1915(d).
II
A district court may dismiss an in forma pauperis complaint as
frivolous under § 1915(d) if it lacks an arguable basis in law or
fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827,
1831-32, 104 L. Ed. 2d 338 (1989); Eason v. Thaler, 14 F.3d 8, 10
(5th Cir. 1994). "A complaint is legally frivolous if it is
premised on an `indisputably meritless legal theory.'" Boyd v.
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Biggers, 31 F.3d 279, 281-82 (5th Cir. 1994) (quoting Neitzke, 490
U.S. at 327, 109 S. Ct. at 1833); see also Moore v. Mabus, 976 F.2d
268, 271 (5th Cir. 1992) (reversing § 1915(d) dismissal based on
"potentially erroneous legal conclusions" (citing Neitzke, 490 U.S.
at 328-30, 109 S. Ct. at 1833-34)). We review a district court's
§ 1915(d) dismissal of an in forma pauperis complaint for abuse of
discretion. Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728,
1733-34, 118 L. Ed. 2d 340 (1992). We consider whether "(1) the
plaintiff is proceeding pro se, (2) the court inappropriately
resolved genuine issues of disputed fact, (3) the court applied
erroneous legal conclusions, (4) the court has provided a statement
of reasons which facilitates `intelligent appellate review,' and
(5) any factual frivolousness could have been remedied through a
more specific pleading." Moore, 976 F.2d at 270 (quoting Denton,
504 U.S. at 34, 112 S. Ct. at 1734).
"[T]he treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under
the Eighth Amendment." Helling v. McKinney, ___ U.S. ___, ___, 113
S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993). "[A] prison official
violates the Eighth Amendment only when two requirements are met.
First, the deprivation alleged must be, objectively, `sufficiently
serious.'" Farmer v. Brennan, ___ U.S. ___, ___, 114 S. Ct. 1970,
1977, 128 L. Ed. 2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S.
294, 298, 111 S. Ct. 2321, 2324, 115 L. Ed. 2d 271 (1991)).
Second, the prison official must have acted with "deliberate
indifference." Id. at ___, 114 S. Ct. at 1977 (quoting Wilson, 501
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U.S. at 302-303, 111 S. Ct. at 2326).
[A] prison official can[] be found liable under the
Eighth Amendment for denying an inmate humane conditions
of confinement [if] the official knows of and disregards
an excessive risk to inmate health and 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, ___ U.S. at ___, 114 S. Ct. at 1979. Whether a prison
official had the requisite knowledge "is a question of fact subject
to demonstration in the usual ways, including inferences from
circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that
the risk was obvious." Id. at ___, 114 S. Ct. at 1981 (citations
omitted).
A
Lacy claims that prison officials created unconstitutional
conditions of confinement by allowing HIV-positive inmates to
masturbate and ejaculate in the prison dayroom, placing other
inmates at risk of contracting the HIV virus. The district court
dismissed this claim on the grounds that prison administrators are
accorded wide discretion in running their institutions, including
decisions regarding measures taken to protect inmates from
contracting communicable diseases, unless any failure to so protect
inmates represents an omission sufficiently harmful to evidence
deliberate indifference to serious medical needs.
Lacy may show that prison officials have been deliberately
indifferent to the risk created by HIV-positive inmates'
ejaculating in the prison dayroom only by showing that the
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officials have been aware of the inmates' conduct and understand
that the conduct creates a substantial risk that other inmates will
contract the HIV virus. See Farmer, ___ U.S. at ___, 114 S. Ct. at
1979. Lacy explicitly alleged in the district court that he had
complained about the inmates' conduct to the prison officials.
However, in order to grant relief, we must infer that the risk
created by the inmates' alleged conduct is obvious. See Farmer,
___ U.S. at ___, 114 S. Ct. at 1981 (holding that "a factfinder may
conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious"). There is no allegation that
any individual has contracted the HIV virus from the dayroom
environment, nor is there any basis for believing that the conduct
complained of, without more, creates a serious medical need for
official intervention. We are not prepared to hold, as a matter of
law, that the alleged conduct creates an obvious risk that other
inmates will contract the HIV virus.
In Moore v. Mabus, 976 F.2d 268 (5th Cir. 1992), in reviewing
the § 1915(d) dismissal of a similar suit, we discussed prisoner
complaints of "serious constitutional violations related to the
`range of difficult, AIDS-related issues that confront all
correctional officials, administrators, policymakers and inmates as
they attempt to grapple with the problems engendered by the
presence of HIV infection in our nation's prisons and jails.'" Id.
at 271 (quoting Harris v. Thigpen, 941 F.2d 1495, 1499 (11th Cir.
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1991)).1 We acknowledged that reviewing such claims does not
"involve the mere application of well-settled principles of law,"
and reversed the district court's § 1915(d) dismissal of the AIDs-
related claim. Id. However, alleging exposure to the HIV virus is
not a magic incantation that relieves a litigant from the
established constructs of Eighth Amendment law. The facts as
alleged by Lacy do not implicate Eighth Amendment concerns. Lacy
neither identifies the serious medical needs that he believes
prison officials have been indifferent to, nor is the risk obvious.
B
Lacy also argues that prison authorities have violated the
Eighth Amendment by allowing inmates to expose themselves to female
prison employees, which he claims will result in the female
employees' not responding to inmates' emergency calls. As support
for his claim, Lacy contends that female employees have already
failed to perform routine security checks in his cell block.2 The
1
Other circuits have also recognized these difficulties. See Gates
v. Rowland, 39 F.3d 1439, 1447 (9th Cir. 1994) (deferring to prison policy of
excluding HIV infected inmates from food service for several reasons, such as
easing fears of inmates and as precaution against spreading infection when risks
are slight or unknown); Harris, 941 F.2d at 1519-20 (noting that "high risk
behavior occurs disproportionately in prison systems," requiring prison officials
to establish effective infection-control policies); Muhammad v. Carlson, 845 F.2d
175, 179 (8th Cir. 1988) (upholding constitutionality of prison policy requiring
segregation of HIV-infected inmates, in part because of court's "reluctance to
hinder prison officials' attempts to cope with the extraordinarily difficult
problems AIDS poses in a prison setting"), cert. denied, 489 U.S. 1068, 109 S.
Ct. 1346, 103 L. Ed. 2d 814 (1989).
2
We do not address whether the female employees' alleged failure to
conduct security checks is violative of the Eighth Amendment, because Lacy did
not bring this claim in his petition. "Although we liberally construe the briefs
of pro se appellants, we also require that arguments must be briefed to be
preserved." Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price
v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)) (citations
omitted).
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district court dismissed Lacy's claim as overly speculative.
To have standing to bring his claim that prison authorities'
conduct has resulted in inmate conduct that might lead to allegedly
unconstitutional behavior on the part of female prison employees,
Lacy must show that he meets the standing requirements set forth in
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct.
2130, 2136, 119 L. Ed. 2d 351 (1992):
First, the plaintiff must have suffered an injury in
fact))an invasion of a legally protected interest which
is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the
conduct complained of))the injury has to be fairly
traceable to the challenged action of the defendant, and
not the result of the independent action of some third
party not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Accord Ass'n for Retarded Citizens v. Dallas County Mental Health
& Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 243 (5th
Cir. 1994). Lacy fails to meet these requirements because his
claim that female prison employees will refuse to answer emergency
calls is conjectural and hypothetical.3 To the extent that it is
not, the likelihood that requiring prison guards to increase their
enforcement of prison regulations against inmates' publicly
exposing themselves will affect female employees' response to
3
In order for a claim to be ripe, the plaintiff "must show that he
`has sustained or is immediately in danger of sustaining some direct injury' as
the result of the challenged official conduct and the injury or threat of injury
must be both `real and immediate,' not `conjectural' or `hypothetical.'" City
of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S. Ct. 1660, 1665, 75 L. Ed.
2d 675 (1983).
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emergency calls is speculative at best.4 Thus, the district court
did not abuse its discretion in concluding that this claim has no
arguable basis in law.5
C
Finally, Lacy contends that prison officials created
unconstitutional conditions of confinement by failing to control
the inmates' use of vulgar language and the volume at which they
play their radios and televisions. A prison condition violates the
Eighth Amendment only if it is so serious that it deprives
prisoners of the "`minimal civilized measure of life's
necessities,' as when it denies the prisoner some basic human
need." Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (quoting
4
In order for Lacy to have standing to bring this claim under Article
III of the Constitution, the alleged injury "must be `fairly' traceable to the
challenged action, and relief from the injury must be `likely' to follow from a
favorable decision." Allen v. Wright, 468 U.S. 737, 751, 758, 104 S. Ct. 3315,
3324, 3328, 82 L. Ed. 2d 556 (1984) (holding that it was overly speculative as
to whether enforcement of Internal Revenue Service rules which prohibited tax
breaks to racially discriminatory private schools would prevent segregated
schools, because withdrawal of tax breaks may not convince these private schools
to change policies or parents to transfer their children to nonsegregated
schools); accord National Treasury Employees Union v. Department of Treasury, 25
F.3d 237, 241 (5th Cir. 1994); see also Simon v. Eastern Ky. Welfare Rights Org.,
426 U.S. 26, 43-44, 96 S. Ct. 1917, 1926-27, 48 L. Ed. 2d 450 (1976) (holding
that it was overly speculative to conclude that suspending tax benefits to
private hospital would force hospital to take on more indigent patients).
5
See Rocky v. King, 900 F.2d 864, 871 (5th Cir. 1990) (characterizing
inmate's § 1983 claim that prison officials' failure to provide toilet and hand-
washing facilities for inmates working in fields violated his Eighth Amendment
rights as possibly deficient for standing purposes because it was overly
speculative that inmate's glaucoma condition would improve to enable him to be
assigned field work, before remanding to district court for dismissal on other
grounds); Lamar v. Whiteside, 606 F.2d 88, 88 (5th Cir. 1979) (dismissing
inmate's claim, which contended that employees hired by prison's alleged
discriminatory hiring practices would discriminate against minority inmates and
cause psychological harm, as too speculative to enable inmate to have standing);
see also Harris v. Evans, 20 F.3d 1118, 1122 (11th Cir.) (holding that pro se
inmate lacked standing to bring § 1983 claim because he could not show actual
injury from prison's policy of refusing to allow employees to write letters of
recommendation for inmates, as he did not show that prison employee would have
actually written him a letter), cert. denied, ___ U.S. ___, 115 S. Ct. 641, 130
L. Ed. 2d 546 (1994).
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Harris v. Angelina County, Tex., 31 F.3d 331, 334 (5th Cir. 1994)
(quoting Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321,
2327, 115 L. Ed. 2d 271 (1991))). Because Lacy has not alleged
such a deprivation from the inmates' use of vulgar language,6 we
conclude that the district court did not abuse its discretion in
dismissing that claim. Lacy also alleges that the loud noise from
the radios and televisions deprived him of needed sleep, and the
ability to concentrate on reading materials. 7 To the extent that
Lacy contends that the excessive noise violates prison rules, he
fails to allege a constitutional violation. See Hernandez v.
Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) ("[T]he mere failure
of the TDC officials to follow their regulations" is not a
constitutional violation.).
Nor does Lacy's contention of excessive noise rise to the
level of an Eighth Amendment violation. Conditions of confinement
6
Lacy alleges only that a reasonable person would deem the inmates'
use of vulgar language to be excessive noise which creates disturbance in the
living area.
7
Lacy stated in his complaint that:
Inmates living near Plaintiffs are regularly permitted to play their
personal radios at sound levels which completely infiltrate the cell
of Plaintiffs, and at volume levels which can be heard into the cell
of Plaintiffs which is located up to 50 or 60 feet away from the
cell(s) in which such personal radios of inmates are located; and at
volume levels which a reasonable person with ordinary hearing and
intelligence would consider loud, raucous, and substantially in
excess of low volume. The television(s) located in the dayroom on
the cellblock in which Plaintiffs are assigned to live are
constantly played at a loud, raucous volume level and can be clearly
heard in an excessive manner into the cell of Plaintiff which is
located a substantial distance from the dayroom, and at a level of
sound which a reasonable person would consider substantially above
a low volume of sound. As a direct result of the institutionally-
violative television and radio volume levels that exist on a daily
basis for up to sixteen hours, Plaintiffs are deprived of needed
rest and sleep, deprived of the ability to concentrate on reading
materials.
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which do not lead to deprivations of essential food, medical care,
or sanitation do not amount to an Eighth Amendment violation. See
Rhodes v. Chapman, 452 U.S. 337, 348 (1981) ("The double celling
made necessary by the unanticipated increase in prison population
did not lead to deprivations of essential food, medical care, or
sanitation."). Lacy fails to allege any injury stemming from the
excessive noises or from any sleep deprivation. Accordingly, we
conclude that the district court did not abuse its discretion in
dismissing that claim. See Lunsford v. Bennett, 17 F.3d 1574, 1580
(7th Cir. 1994) (a few hours of periodic loud noises that merely
annoy, rather than injure, the prisoner does not state a
constitutional claim).
III
For the foregoing reasons, we AFFIRM the district court's
judgment.
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