                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 26, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-20123
                         Summary Calendar



DONALD JAMES ATKINSON,

                                    Plaintiff-Appellant,

versus

GARY L. JOHNSON,

                                    Defendant-Appellee.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. H-00-CV-4401
                        --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Donald James Atkinson, Texas state prisoner # 692017,

appeals the summary-judgment dismissal of his 42 U.S.C. § 1983

civil rights action seeking damages and declaratory and injunctive

relief.   We AFFIRM.

     Atkinson contends that he is entitled to relief as a result

of being deprived of adequate sleep by implementation of Texas

Department of Criminal Justice, Institutional Division’s (TDCJ)

security policy SM-06.03, issued by appellee Johnson.      This

     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-20123
                                -2-

policy requires opening and closing of cell doors so that,

Atkinson asserts, it is impossible for him to get enough

uninterrupted sleep nightly in order to maintain his health.

     The district court held that Atkinson is not entitled to

collect monetary damages from Johnson because Atkinson does not

assert that he has sustained any physical injury from deprivation

of sleep resulting from the implementation of SM-06.03.    We

perceive no error in this ruling.    See 42 U.S.C. § 1997e(e);

Herman v. Holiday, 238 F.3d 660, 665-66 (5th Cir. 2001).

     Concerning Atkinson’s claims for declaratory and injunctive

relief, “the Eighth Amendment’s prohibition against cruel and

unusual punishment does require that prisoners be afforded

‘humane conditions of confinement.’”    Herman, 238 F.3d at 664.

This court has stated that “sleep undoubtedly counts as one of

life’s basic needs.   Conditions designed to prevent [prisoners’]

sleep, then, might violate the Eighth Amendment.”     Harper

v. Showers, 174 F.3d 716, 720 (5th Cir. 1999).

     “In order to establish an Eighth Amendment violation

regarding conditions of confinement, an inmate must establish:

first, that the deprivation alleged was sufficiently serious. . .;

and second, that the prison official possessed a sufficiently

culpable state of mind.”   Herman, 238 F.3d at 664.   The inmate

must prove “that the official acted with deliberate indifference

to inmate health or safety.”   Id.   To establish deliberate

indifference, the inmate must show “that the defendant officials
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                                     -3-

‘(1) were aware of facts from which an inference of excessive

risk to the prisoner’s health or safety could be drawn and

(2) that they actually drew an inference that such potential for

harm existed.’”        Id. (quoting Bradley v. Puckett, 157 F.3d 1022,

1025 (5th Cir. 1998)).

     An inmate may obtain injunctive relief if he shows that it

is necessary in order “to prevent a substantial risk of serious

injury from ripening into actual harm.”         Farmer v. Brennan,

500 U.S. 825, 845 (1994).       To avoid summary judgment, however,

“he must come forward with evidence . . . that the defendant-

officials were at the time suit was filed, and are at the time

of summary judgment, knowingly and unreasonably disregarding an

objectively intolerable risk of harm, and that they will continue

to do so.”     Id. at 845-46.    “[F]inally to establish eligibility

for an injunction, the inmate must demonstrate the continuance of

that disregard during the remainder of the litigation and into

the future.”     Id.

     Atkinson presented no summary-judgment evidence to the trial

court that Johnson issued or authorized the implementation of

SM-06.03 with reckless disregard of the risk that Atkinson

would suffer serious harm to his health from sleep deprivation.

Specifically, Atkinson offered no evidence to controvert an

official’s affidavit stating that the purpose of SM-06.03 is to

reduce inmate altercations and thefts.         Atkinson also failed to

show that any substantial risk of harm to him resulting from
                          No. 03-20123
                               -4-

implementation of the policy was obvious.   See Reeves v. Collins,

27 F.3d 174, 176 (5th Cir. 1994).   Accordingly, the district

court did not err by granting summary judgment to Johnson.

     AFFIRMED.
