     Case: 12-41312       Document: 00512286836         Page: 1     Date Filed: 06/25/2013




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

                                                                            FILED
                                                                           June 25, 2013
                                     No. 12-41312
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

THOLONAUS D. POMIER,

                                                  Plaintiff-Appellant

v.

M.E. GEAN LEONARD, JR.; R.C. DE LA CRUZ, JR.; KURT SISTRUNK,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:10-CV-121


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
       Tholonaus D. Pomier, Texas prisoner # 1554567, has appealed the district
court’s judgment dismissing his civil rights complaint pursuant to 28 U.S.C.
§ 1915A(b)(1) as frivolous and for failure to state a claim upon which relief may
be granted. We review the dismissal of a complaint under § 1915A(b)(1) de novo,
accepting the facts alleged in the complaint as true and viewing them in the
light most favorable to the plaintiff. Green v. Atkinson, 623 F.3d 278, 279 (5th
Cir. 2010). Pomier complains of the conditions of his confinement as a pretrial

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41312

detainee at the Galveston County Jail during and after Hurricane Ike. He
complains that the defendant sheriff failed to evacuate him, that he suffered
psychological damages because of conditions in the jail during and after the
storm, and that his right of access to the courts was denied because he did not
have access to the jail law library.1
       “No Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”                     42 U.S.C.
§ 1997e(e). Although he was a pretrial detainee, Pomier was a “prisoner” under
the statutory definition of that term. See § 1997e(h). Pomier contends that his
psychological-injury claim is not barred by § 1997e(e) because he did sustain a
physical injury, that is, “discoloration of his right big toe as a result of . . . foot
fungus.” Pomier’s injury was de minimis and was insufficient to overcome the
statutory hurdle of § 1997e(e). See Alexander v. Tippah Cnty., Miss., 351 F.3d
626, 631 (5th Cir. 2003). Section 1997e(e) does not, however, bar claims for
nominal and punitive damages. Hutchins v. McDaniels, 512 F.3d 193, 196-98
(5th Cir. 2007).
       Pomier contends that his conditions-of-confinement claim should have
been analyzed under Bell v. Wolfish, 441 U.S. 520 (1979), and not under the
standard in Farmer v. Brennan, 511 U.S. 825, 832 (1994). “Pretrial detainees
and convicted prisoners . . . look to different constitutional provisions for their
respective rights to basic needs such as medical care and safety.” Hare v. City
of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (en banc). Convicted prisoners
are protected by the Eighth Amendment’s prohibition against cruel and unusual
punishment. Id. (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Under the



       1
         Pomier has waived his claim against District Attorney Kurt Sistrunk by failing to
discuss it in his brief on appeal. See United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir.
2000).

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due process guarantees of the Fourteenth Amendment, states cannot punish
pretrial detainees. Id. (citing Bell, 441 U.S. at 535, 538).
      We held in Hare that episodic acts and omissions, however, such as the
sheriff’s decision not to evacuate the jail, are evaluated under the standard in
Farmer. See id. at 643. Under Farmer, “a prison official may be held liable . . .
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.” 511 U.S. at 847. “Deliberate indifference
cannot be inferred merely from a negligent or even a grossly negligent response
to a substantial risk of harm.” Thompson v. Upshur County, Tex., 245 F.3d 447,
459 (5th Cir. 2001).
      Pomier cannot show that the sheriff knew that he faced a substantial risk
of serious harm because of the approaching hurricane and that the sheriff
disregarded that risk by deciding unreasonably not to evacuate the jail. See
Farmer, 511 U.S. at 847. Evacuation itself entails significant risks for evacuees
and for institutional security, and the sheriff could well have decided that
Pomier would be safest sheltering in place in a reinforced structure such as a
jail. Of course, as it turned out, Pomier did survive the storm.
      To the extent that Pomier complains about short-term conditions that
existed in the jail following the storm, he still may not prevail. Pomier alleged,
inter alia, that there was no power at the jail for five days, that he could not use
a toilet to defecate for three days, that he could not shower for seven days and
then had to take cold showers for seven more days, that toilets were filled with
urine and feces for thirteen days, and that there was no clean water available
for three days. Because Pomier cannot show that the defendants implemented
a rule or restriction designed to bring about these conditions, Bell is applicable
if Pomier shows that the defendants’ “acts or omissions were sufficiently
extended or pervasive, or otherwise typical of extended or pervasive misconduct
by other officials, to prove an intended condition or practice to which the Bell

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                                  No. 12-41312

test can be meaningfully applied.” Hare, 74 F.3d at 645. Pomier cannot make
this showing. We agree with the district court that Pomier’s allegations amount
to temporary conditions that arose due to the virtually unprecedented effects of
a major hurricane and the defendants’ decision not to evacuate the jail. As noted
by the district court, Hurricane Ike was the largest storm to hit Galveston since
1900. Pomier has not alleged pervasive or extended misconduct in the face of
this natural disaster, nor has he shown any actionable injuries from the
resulting alleged conditions. We therefore perceive no error in the district
court’s dismissal of Pomier’s claims.
      Pomier also contends that he did not have access to the jail law library
following the hurricane and that he was unable to prepare for his criminal trial,
at which he was representing himself.         As a result, he contends, he was
sentenced to an unlawful 20-year term of imprisonment, which was overturned
on appeal. “An inmate alleging the denial of his right of access to the courts
must demonstrate a relevant, actual injury stemming from the defendant’s
unconstitutional conduct.” Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009).
In vacating Pomier’s 20-year sentence, the state appellate court acted sua
sponte. See Pomier v. State, 326 S.W.3d 373, 384 (Tex. App. 2010). If Pomier’s
appellate attorney could not identify the trial court’s error, there is no reason to
believe that Pomier would have discovered the error prior to trial if he had more
access to a law library. See Brewster, 587 F.3d at 769.
      The district court’s judgment is AFFIRMED.




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