     Case: 14-30746      Document: 00513120974         Page: 1    Date Filed: 07/20/2015




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

                                    No. 14-30746                                 FILED
                                  Summary Calendar                           July 20, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
HAROLD JOE BLACK,

                                                 Plaintiff-Appellant

v.

CONCORDIA PARISH DETENTION CENTER; RANDELL MAXWELL; J.
LEVY DABADIE CORRECTIONAL CENTER; WINN CORRECTIONAL
CENTER; DAVID WADE CORRECTIONAL CENTER; TERRY TERRELLE;
JERRY GOODWIN; PEGGY E. LANDRY,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:11-CV-1714


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Harold Joe Black, formerly Louisiana prisoner #111111 appeals the
dismissal of his civil rights complaint, arguing that the district court erred in
concluding that he had not stated a claim upon which relief could be granted
against the defendants.        He also contends that the district court and the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30746

magistrate judge acted improperly by conducting a second screening of his
case. This latter contention is meritless, as the district court is obligated to
dismiss, at any time during the proceeding, an in forma pauperis (IFP) prisoner
complaint that fails to state a claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii).
      The district court could properly dismiss Black’s claims only if his factual
allegations “taken as true, do not state a claim that is plausible on its face.”
Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014) (internal quotation
marks and citation omitted). We review the dismissal of Black’s complaint “de
novo, using the same standard applicable to dismissals under Federal Rule of
Civil Procedure 12(b)(6).” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir.
2013).
      A prison official may be held liable under the Eighth Amendment for
denying a prisoner humane conditions of confinement only if he acts (or fails
to act) with “deliberate indifference to a substantial risk of serious harm to an
inmate.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). A prison official acts
with deliberate indifference “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.” Id. at 847.
      The Supreme Court set forth a two-prong test to determine whether
exposure to environmental tobacco smoke (ETS) entitles an inmate to relief
because it violates his Eighth Amendment right to be free from cruel and
unusual punishment. First, a prisoner must prove objectively that he is “being
exposed to unreasonably high levels of ETS.” Helling v. McKinney, 509 U.S.
25, 35 (1993).    Second, the prisoner must show subjectively that prison
authorities demonstrated a “deliberate indifference” to his plight. Id. at 36.
      Landry’s denying Black release to parole in 2004 does not plausibly state
a claim of Landry’s deliberate indifference to Black’s ETS exposure.           See



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                                  No. 14-30746

Coleman, 745 F.3d at 763.        Black’s allegations that Terrell and Maxwell
exposed him to ETS in the past also fail to state plausible claims upon which
relief may be granted. See Farmer, 511 U.S. at 828; Watts v. Graves, 720 F.2d
1416, 1422-23 (5th Cir. 1983). Black has not briefed and has therefore waived
any argument regarding the prison facilities he named as defendants. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). However, with respect
to Goodwin and Leblanc, the record reflects that Black filed administrative
complaints and wrote a letter to Goodwin alleging that the prison’s smoking
policy was not enforced and that his exposure to ETS aggravated his prostate
cancer.       When he was unsatisfied with the denial of his administrative
complaint, Black appealed, and his appeal was denied by Leblanc or Leblanc’s
designee.
       Taking Black’s allegations as true, he has stated a plausible claim that
Goodwin and Leblanc knew he faced a substantial risk of serious harm and
disregarded that risk by failing to take reasonable measures to abate it. See
Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Black should
therefore be provided an opportunity “to develop his case at least to the point
where any merit it contains is brought to light.” Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983). “It may be possible for the defendants by motion for
summary judgment to set forth facts beyond genuine dispute that would prove
the nonexistence of a valid claim on the merits.” Id. at 221.
       The judgment of the district court is affirmed with respect to the
dismissal of Black’s claims against Landry, Terrell, Maxwell, and the prison
facilities.    However, because Black has pleaded plausible claims for relief
against Goodwin and Leblanc, the dismissal of Black’s claims against them is
vacated and remanded for further proceedings. See Green v. Atkinson, 623
F.3d 278, 281 (5th Cir. 2010).



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                          No. 14-30746

 AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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