     Case: 13-40283      Document: 00512572889         Page: 1    Date Filed: 03/25/2014




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

                                                                                FILED
                                    No. 13-40283                            March 25, 2014
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk

MICHAEL K. POWERS; RICHARD STRICKLIN, II; PHILLIP CRITCHLEY;
RONALD J. KEOUGH; JOSEPH PORTER,

                                                 Plaintiffs-Appellants

v.

DIANA CLAY, Assistant Warden; KENNETH BRIGHT, Warden; BARBARA
TREVINO, Assistant Regional Director; EVELYN CASTRO, Acting Assistant
Warden; NORMAN SAENZ, Captain; LUIS HERNANDEZ, Captain;
ESMEREJILDO MORENO, Lieutenant; BRIAN SMOLIK, Correctional
Officer IV; KRISTY KONCHABA-SMOLIK, Correctional Officer III; MITZI F.
KIEHN, Correctional Officer IV; KENNETH E. WILSON, Correctional Officer
V; J. M. GARCIA, Assistant Regional Director; JOHN DOE, Unit Medical;
JANE DOE, Unit Medical,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 6:11-CV-51


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-40283

      Appellants Michael Powers, Richard Stricklin, and Phillip Critchley,
were among approximately 150-200 inmates who were housed in an outdoor
recreational yard on April 6, 2010, while the Texas Department of Criminal
Justice conducted a surprise shakedown of their cells. In a complaint brought
under 42 U.S.C. § 1983, the appellants made a number of claims, including a
claim that the conditions to which they were subjected during the search
violated their Eighth Amendment rights.         A majority of the claims were
dismissed as frivolous; however, the Eighth Amendment claims against
Warden Clay and Major Castro were allowed to proceed.            Claims against
Warden Clay in her official capacity and against Captain Saenz, for deliberate
indifference to serious medical needs, also were allowed to proceed.         The
appellees filed a motion for summary judgment arguing, primarily, that they
were entitled to qualified immunity. The magistrate judge determined that
the Eighth Amendment claims should be dismissed because the conditions
alleged were not sufficiently objectively harmful to form the basis of an Eighth
Amendment violation. The instant appeal follows the district court’s order
adopting the magistrate judge’s determination and granting the appellees’
motion for summary judgment.
      The appellants first argue that the magistrate judge improperly
adjudicated the motion for summary judgment without fully airing their
discovery requests, which prevented them from putting forth their best case.
Discovery issues are left to the sound discretion of the district court and will
not be reversed unless they are arbitrary or clearly unreasonable. McCreary
v. Richardson, 738 F.3d 651, 654 (5th Cir. 2013). The magistrate judge gave
full consideration to the appellants’ original discovery motion, and the denial
of the motion left little doubt about the likelihood of obtaining the information
requested in the amended discovery motion. Although the case had been



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                                   No. 13-40283

pending for over a year, the amended discovery motion was not filed until well
after the original discovery motion was denied. No abuse of discretion has been
shown. See McCreary, 738 F.3d at 654.
      Regarding the merits of the case, the appellants argue that given the
district court’s general acceptance of their version of the facts, “it is all the more
distressing that the trial court found nothing in these allegations that rose to
a threshold of constitutional violation.”        They argue that “willfully and
intentionally locking prisoners on a sun-exposed concrete slab for six hours
with no means or access of protecting themselves, resulting in second-degree
sunburn” is not constitutionally permissible conduct.
      We review the grant of summary judgment de novo, applying the same
standards as the district court. Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir.
2010). All facts and inferences are construed in the light most favorable to the
nonmoving party. Id. Summary judgment is appropriate where the “movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
      To establish an Eighth Amendment violation based on prison conditions,
a prisoner must show (1) that the deprivation alleged was sufficiently serious
so as to result in the denial of the minimal civilized measure of life’s necessities,
and (2) that the defendants acted with deliberate indifference to his health or
safety. Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001) (citing Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). The first showing requires the prisoner to
demonstrate that the defendant’s act or omission was “objectively serious” and
that it exposed him to a “substantial risk of serious harm.” Farmer, 511 U.S.
at 834. The second showing requires a demonstration that the defendant had
a “sufficiently culpable state of mind” and, thus, was deliberately indifferent
to inmate health or safety. Id.



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                                  No. 13-40283

      The magistrate judge determined that the appellants failed to make the
required showing of objective conditions which subjected them to a substantial
risk of serious harm. Conditions posing a substantial risk of serious harm are
those that result in the “extreme deprivation” of humane conditions. Gates v.
Cook, 376 F.3d 323, 332-33 (5th Cir. 2004). While evidence of a past medical
injury “would clearly strengthen” a plaintiff’s case, a plaintiff does not have to
show a medical injury to substantiate his claims. Id. at 441. In Gates, 376
F.3d at 334, we affirmed the district court’s conclusion that the conditions
presented a substantial risk of serious harm where temperatures averaged in
the nineties with high humidity, the facility primarily was not air conditioned,
the ventilation was inadequate, and the probability of heat related illness was
extreme.
      The conditions alleged by the appellants are not on par with any that we
have recognized as violative of the Eighth Amendment.              Although the
appellants contend that it has become “common knowledge” that exposure to
the sun can result in skin cancer, they offer no authority establishing that
there exists a “clearly established” constitutional right to be free from exposure
to the sun. See Williams, 736 F.3d at 688 (noting that the constitutional right
allegedly abridged must be clearly established); see also Burleson v. Tex. Dep’t
Criminal Justice, 393 F.3d 577, 590 (5th Cir. 2004) (affirming magistrate
judge’s ruling of no constitutional violation where there was no evidence that
the prisoner’s exposure to thoriated tungsten posed a substantial risk of harm).
Moreover, the relatively brief duration of the appellants’ exposure to the sun
does not mitigate in their favor. Cf. Hutto v. Finney, 437 U.S. 678, 686-87
(1978) (“the length of confinement cannot be ignored in deciding whether the
confinement meets constitutional standards”); see also Helling v. McKinney,
509 U.S. 25, 36 (1993) (noting that the Eighth Amendment’s objective inquiry



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                                  No. 13-40283

requires a court to “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.”). Although a prisoner need not
show “serious current symptoms” or actual injury to state a valid Eighth
Amendment claim, see Helling, 509 U.S. at 33, the magistrate judge did not
conclude, per se, that the lack of serious injury precluded the appellants’
claims. Similarly, the appellants’ allegations of injury do not, per se, establish
an Eighth Amendment claim. See Gates, 376 F.3d at 441.
      Proof of “both the subjective and objective elements [is] necessary to
prove an Eighth Amendment violation.” Helling, 509 U.S. at 35. Because the
appellants have not demonstrated reversible error in the district court’s
rejection of their claims based on their failure to establish an objective Eighth
Amendment violation, we do not address their arguments relating to the
subjective element of deliberate indifference. It is also not necessary for this
court to reach the merits of the district court’s finding of Eleventh Amendment
immunity, or the finding that Appellant Critchley failed to exhaust his claims.
Cf. Spiller v. City of Tex. City Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997)
(noting that plaintiffs seeking to hold defendant liable in official capacity must
show a custom or policy resulting in a constitutional violation). The appellants
have shown no error in the district court’s determination that they failed to
exhaust their claims against Captain Saenz. See Johnson v. Johnson, 385 F.3d
503, 515 (5th Cir. 2004); Days v. Johnson, 322 F.3d 863, 867-68 (5th Cir. 2003).
      AFFIRMED.




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