     Case: 15-40079         Document: 00513511689         Page: 1     Date Filed: 05/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals

                                        No. 15-40079
                                                                               Fifth Circuit

                                                                             FILED
                                                                         May 18, 2016
                                                                        Lyle W. Cayce
JAMES LEGATE,                                                                Clerk


                Plaintiff - Appellant

v.


BRAD LIVINGSTON, Executive Director Texas Department of Criminal
Justice,

                Defendant - Appellee




                     Appeal from the United States District Court
                          for the Southern District of Texas




Before CLEMENT and OWEN, Circuit Judges, and JORDAN, District
Judge.*




      *   District Judge for the Southern District of Mississippi, sitting by designation.
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DANIEL P. JORDAN III, District Judge.
      James Legate, Texas prisoner # 888549, filed suit under 42 U.S.C.
§ 1983 against Brad Livingston, Executive Director of the Texas Department
of Criminal Justice (“TDCJ”). Legate alleged that Livingston violated his
Eighth Amendment right to be free from cruel and unusual punishment by
failing to protect him from the risk of contracting communicable diseases,
including Hepatitis C. The district court dismissed the suit pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1), and 1997e(c)(1). At issue is whether
the district court erred in dismissing Legate’s Eighth Amendment claim
without affording him discovery or an opportunity to amend his complaint.
Finding no error, we AFFIRM.
I.    BACKGROUND
      Legate, a Native American inmate, claims to have contracted Hepatitis
C while participating in a communal pipe-smoking ceremony at the TDCJ’s
Beeville, Texas, facility. Beginning in 2002, Legate regularly participated in
such ceremonies as part of his Native American religion, and at that time,
TDCJ policy allowed the practice.       In 2003, Legate was diagnosed with
Hepatitis C but did not know the origin and continued to participate in the
ceremonies until 2009. Later, in 2011, the TDCJ amended its policy and
prohibited communal pipe smoking because it was considered a “poor health
practice” and presented a significant risk of spreading communicable diseases
among the prison population.
      After this change in policy, Legate filed suit alleging that Livingston
acted with deliberate indifference to Legate’s health and safety by “fail[ing] to
protect Plaintiff from contracting Hepatitis C, and other communicable
diseases, from 2002 through 2009 . . . .”      Legate’s deliberate-indifference
claim relied in part on a provision of the TDCJ’s May 1996 Chaplaincy


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                                   No. 15-40079
Manual Policy, which stated that “[i]nmates may not share pipes . . . because
of health related concerns.” He claims that Livingston was aware, or should
have been aware, of these health risks during the period in which the TDCJ
allowed Native American inmates to share a communal pipe.                 He now
appeals the dismissal of his claim.
II.    ANALYSIS
       A.    Dismissal of Eighth Amendment Claim
       Title 28 U.S.C. § 1915(e)(2)(B)(ii) requires the district court to dismiss
an in forma pauperis (“IFP”) prisoner complaint if it finds that the action
does not state a claim upon which relief may be granted. And § 1915A(b)(1)
directs the court to “dismiss the complaint, or any portion of the complaint, if
the complaint—is frivolous, malicious, or fails to state a claim upon which
relief may be granted.” See also 28 U.S.C. § 1997e(c)(1) (mandating dismissal
of prisoner suits challenging conditions of confinement that are frivolous or
fail to state a claim).
       Dismissals under §§ 1915(e)(2)(B)(ii), 1915A(b)(1), and 1997e(c)(1) for
failure to state a claim are reviewed de novo—the same standard applied to
dismissals under Federal Rule of Civil Procedure 12(b)(6). Ruiz v. United
States, 160 F.3d 273, 275 (5th Cir. 1998). Under that standard, a complaint
will survive dismissal for failure to state a claim if it contains “sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Thus, a plaintiff must “plead[] factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
       Here, Legate contends that the district court erred in dismissing his
Eighth Amendment claim. The Eighth Amendment prohibits the infliction of


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                                 No. 15-40079
“cruel and unusual punishments” on convicted criminals and extends to
deprivations suffered during imprisonment. The Amendment encompasses a
right to “reasonable safety,” including protection against unsafe conditions
that pose “an unreasonable risk of serious damage to [the inmate’s] future
health.” Helling v. McKinney, 509 U.S. 25, 33, 35 (1993). An official’s duty to
protect against such unsafe conditions arises where the inmate has been
placed “under a regime that incapacitates [him] to exercise ordinary
responsibility for his own welfare.” Cty. of Sacramento v. Lewis, 523 U.S.
833, 851 (1998).
      To establish an Eighth Amendment violation, the inmate must show
that the alleged deprivation posed a “substantial risk of serious harm” and
the defendant acted or failed to act with deliberate indifference to the risk to
the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006). Moreover, the court
must “assess whether society considers the risk that the prisoner complains
of 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 (emphasis added).
      In this case, the district court held that Legate “failed to state a
constitutional violation because the TDCJ did not have a policy requiring him
to participate in the communal pipe ceremony.” Legate v. Livingston, No.
2:14-cv-269, 2015 WL 158868, at *1 (S.D. Tex. Jan. 12, 2015) (citing Helling,
509 U.S. at 36). The district court concluded that Legate was “capable of
exercising ordinary responsibility for his own welfare” and voluntarily
participated in the communal pipe-smoking ceremony. Id. at *2. Indeed,
Legate could have engaged in this same conduct had he been free.
      Although this circuit has not considered an Eighth Amendment claim
involving voluntary conduct, circuits that have addressed the issue have held


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that a prisoner cannot establish a violation where he willingly participates in
the conduct giving rise to his injury. See, e.g., Wronke v. Champaign Cty.
Sheriff’s Office, 132 F. App’x 58, 61 (7th Cir. 2005) (holding inmate “cannot
manufacture a constitutional claim by volunteering for a job when he could
have avoided the offending conditions by choosing to stay in his cell”);
Christopher v. Buss, 384 F.3d 879, 882–83 (7th Cir. 2004) (rejecting Eighth
Amendment claim based on defendant’s failure to protect plaintiff from injury
during voluntary softball game); Haas v. Weiner, 765 F.2d 123, 124 (8th Cir.
1985) (finding no violation where plaintiff was permitted to use alcohol and
marijuana while incarcerated because he “voluntarily engage[d]” in the
conduct). This persuasive authority is consistent with Helling, so we join
these other circuits in holding that the Eighth Amendment does not address
injury caused by an inmate’s voluntary acts of this nature.
      Legate never directly challenges this core holding from the district
court’s order. And he has never alleged that Livingston required him to
participate in the communal-pipe ceremony or that his incarceration
somehow incapacitated him from exercising “ordinary responsibility for his
own welfare.” Cty. of Sacramento, 523 U.S. at 851. In fact, he previously
sued a TDCJ Director challenging the Department’s updated policy
prohibiting communal-pipe smoking. See Legate v. Stephens, No. 2:13–CV–
148, 2014 WL 3588489, at *1 (S.D. Tex. July 21, 2014).                      Because he
voluntarily participated in the pipe-smoking ceremony based on his personal
religious tenets, Legate has failed to state a claim for relief under the Eighth
Amendment. 1




      1 To the extent Legate faults the district court for dismissing his claim before
discovery, he has not shown how discovery would overcome the legal basis for dismissal.

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      B.      Leave to Amend
      Legate also appeals the district court’s denial of his request for leave to
amend his complaint to add a due-process-violation claim and additional
defendants.    We review a district court’s denial of leave to amend under
Federal Rule of Civil Procedure 15(a) for an abuse of discretion. Stripling v.
Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000).
      Rule 15(a) “requires the trial court to grant leave to amend ‘freely,’ and
the language of this rule ‘evinces a bias in favor of granting leave to amend.’”
Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002)
(quoting Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1162
(5th Cir. 1982)). That said, a district court need not grant a futile motion to
amend. Stripling, 234 F.3d at 872–73. Futility is determined under Rule
12(b)(6) standards, meaning an amendment is considered futile if it would
fail to state a claim upon which relief could be granted. Id.
      Legate never filed a formal motion to amend. But he sought leave to
amend in his objection to the magistrate judge’s memorandum and
recommendation.       In essence, he wished to add a claim that Livingston
violated his due-process rights by failing to warn him about the health risks
associated with smoking a communal pipe. 2               He also sought to add as
additional defendants certain unidentified TDCJ policymakers responsible
for changing the May 1996 Chaplaincy Manual Policy. The district court
denied these requests because Legate failed to allege that TDCJ officials
“took any deliberate action to deprive him of life, liberty or property” and
further failed to specifically identify the defendants he sought to add, thus
making amendment futile. Legate, 2015 WL 158868, at *2.



      2 Although he does not specify, we assume Legate intended a substantive, rather
than procedural, due-process claim.

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                                  No. 15-40079
      Legate fails to substantively address these issues in his brief. First,
although he twice mentions the due-process claim, he never explains why the
district court’s finding of futility was incorrect.        A party that fails to
adequately address an argument asserted on appeal is deemed to have
waived that argument. United States v. Scroggins, 599 F.3d 433, 446–47 (5th
Cir. 2010); see also Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An
appellant abandons all issues not raised and argued in its initial brief on
appeal.”). Legate has not demonstrated the district court erred in finding
that a due-process claim would be futile.
      Second, regarding his request to join new defendants, Legate has never
identified the individuals he seeks to add and has not explained how adding
these defendants would overcome the substantive flaws in his Eighth
Amendment and substantive-due-process claims. We therefore agree with
the district court’s finding that amending the complaint to include
unidentified TDCJ policymakers as defendants would be futile.
      Accordingly, the district court did not abuse its discretion in denying
leave to amend on either basis.
      AFFIRMED.




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