                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 00-30554




                        HENRY KOBNAR DAVIES,

                                           Plaintiff-Appellant,

                                versus

                CHARLES A. FUSELIER; TODD G. LOUVIERE;
               JOHN B Z CAPLINGER; MAJORIE ALLEMOND;
                 BEN J J BANDANZA; MORTON, Deportation
                Officer; CANTRELL, Deportation Officer

                                           Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                             97-CV-2535
_________________________________________________________________
                           March 15, 2001

Before KING, Chief Judge, ALDISERT* and BENAVIDES, Circuit
Judges.

PER CURIAM**



* Circuit Judge of the Third Circuit, sitting by designation.

** 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this opinion should not be published and is not precedent except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.
     Henry Kobnar Davies, an Immigration and Naturalization

Service (“INS”) detainee, appeals from summary judgment in favor

of Sheriff Charles Fuselier, Warden Todd Louviere, INS District

Director John Caplinger, and other defendants.   Appellant filed a

complaint under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named

Agents, 403 U.S. 388, 389 (1971), alleging that the defendants

violated his constitutional rights while he was detained in the

St. Martin Parish Jail (“SMPJ”) from October 21, 1997 to April 4,

1998.

     This appeal requires us to decide (1) whether the notice of

appeal was timely and whether it properly brought up the

underlying judgment on appeal; (2) whether the district court

erred by dismissing Davies’ claims pursuant to § 1915(e) and by

ordering Davies to pay the filing fee in accordance with the

Prison Litigation Reform Act (“PLRA”); (3) whether being detained

for more than five months in a cell with a defective toilet and

leaking walls could establish a violation of constitutional

magnitude; and (4) whether Appellees provided evidence sufficient

to withstand summary judgment on a second-hand smoke claim.

     Because we write solely for the parties and not for

publication, we need not set forth a detailed recitation of the

background for this appeal, and we will limit our discussion to

the resolution of the issues presented.



                               I.

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     Although Davies stated in his notice of appeal that he was

appealing only the district court’s denial of his Rule 59(e)

motion, Davies’ appellate brief makes clear his intent to appeal

from the underlying judgment and not merely the denial of his

motion.   See Osterberger v. Relocation Realty Serv. Corp., 921

F.2d 72, 73 n.1 (5th Cir. 1991) (“[A] party who makes a simple

mistake in designating the judgment appealed from does not

forfeit his right of appeal where the intent to pursue it is

clear.”) (internal quotation marks and citation omitted); see

also Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d

665, 667 (5th Cir. 1986) (noting that a Rule 59(e) motion

generally brings up the underlying judgment for review).    Thus,

the underlying judgment is properly before the court.

     Because he is an INS detainee, Davies is not subject to the

PLRA.   Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000)

(reasoning that the PLRA does not apply to INS detainees because

they are not “prisoners” within the meaning of 28 U.S.C. §

1915(h)); Ojo v. INS, 106 F.3d 680, 682 (5th Cir. 1997)(same).

Because § 1915(e) was added by the PLRA, the district court erred

by citing that section as the basis for its partial dismissal of

Davies’ complaint.   See Black v. Warren, 134 F.3d 732, 733 (5th

Cir. 1998); R. 1, 235.    However, Davies does not challenge the

district court’s § 1915(e) dismissal.    Accordingly, he has

abandoned those issues.    See Yohey v. Collins, 985 F.2d 222, 225

(5th Cir. 1993).   We will affirm the district court’s § 1915(e)

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dismissal on the alternative grounds of failure to state a claim

pursuant to Rule 12(b)6) of the Federal Rules of Civil Procedure.

See Bickford v. Int’l Speedway Corp., 654 F.2d 1028, 1031 (5th

Cir. 1981) (holding that a dismissal may be affirmed on

alternative grounds).

     The district court assessed an initial partial filing fee

and ordered payment of the remainder of the appellate filing fee

pursuant to PLRA §§ 1915(b)(1) and (b)(2).    Because Appellant is

not subject to the PLRA, we will vacate the court’s May 15, 2000

order for Davies to pay the appellate filing fee in accordance

with the PLRA and direct the Clerk to return to Davies any money

paid in conformity with that order.

     Davies proceeded in forma pauperis(“IFP”)in the district

court, and the district court found that he was entitled to

continue to do so on appeal.    Accordingly, we hold that he may

continue to proceed IFP.    Rule 24(a)(3), Federal Rules of

Appellate Procedure.



                                  II.

     We review a grant of summary judgment de novo and apply the

same criteria that the district court employed.     Olabisiomotosho

v. Houston, 185 F.3d 521, 525 (5th Cir. 1999).    The facts and any

inferences to be drawn are viewed in the light most favorable to

the nonmovant.   Id.    “Summary judgment is properly granted if

‘the pleadings, depositions, answers to interrogatories, and

                                   4
admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.’”

Id.; Rule 56(c).    If the moving party meets the initial burden of

showing that there is no genuine issue of material fact, the

burden shifts to the nonmovant to set forth specific facts

showing the existence of such an issue for trial.    Rule 56(e).

The nonmovant cannot satisfy his burden with conclusory

allegations, unsubstantiated assertions, or only a scintilla of

evidence.   Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994)(en banc).

     An INS detainee is entitled to the same rights afforded to a

pretrial detainee.     Edwards v. Johnson, 209 F.3d 772, 778 (5th

Cir. 2000).     “[A] pretrial detainee’s constitutional claims are

considered under the due process clause instead of the Eighth

Amendment.”     Edwards, 209 F.3d at 778 (citations omitted).   In

analyzing constitutional challenges raised by pretrial detainees,

the court must first determine whether to classify the challenge

as an attack on a “condition of confinement” or an “episodic act

or omission.”     Id. (internal quotations and citations omitted).

Because Appellant’s claims concern the general conditions at the

SMPJ and not a particular act, his claims can be characterized as

challenges to the conditions of confinement.     See id.

     A court considering a pretrial detainee’s claims concerning

the constitutionality of conditions of confinement “must

                                   5
determine whether the conditions complained of are imposed for

the purpose of punishment.”    Hamilton v. Lyons, 74 F.3d 99, 104

(5th Cir. 1996) (citation omitted).      “Because they have not yet

been convicted of the crime with which they are charged, pretrial

detainees have a due process right not to be punished for that

crime.”    Id. (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16

(1979)).    A punitive purpose is established by direct proof of an

expressed intent to punish the pretrial detainee for the crime

charged; a punitive purpose may also be inferred if the

challenged condition is not “reasonably related to a legitimate

governmental objective.”    Hamilton, 74 F.3d at 104 (citations

omitted).   However, even if the pretrial detainee establishes

evidence of a punitive purpose, in conditions of confinement

claims, there is “a de minimis level of imposition with which the

Constitution is not concerned.”       Id. at 106 (citation omitted).



                                III.

     As an initial matter, Appellant does not challenge the

district court’s dismissal of his claims that he was

unjustifiably placed in lockdown, that he was given only biscuits

and watery milk for breakfast during lockdown, and that the water

was cut off for fifteen hours during lockdown.      We deem these

issues abandoned.    See Yohey, 985 F.2d at 225.




                                  6
     Appellant argues that the district court erred in granting

summary judgment on his defective toilet and leaking roof and

walls claims.    He asserts that for five months he was subjected

to a daily stench caused by toilets that backed up with human

waste.    He also asserts that the walls and roof in his cell

leaked dirty rainwater.    The district court determined that

Davies did not allege that his toilet overflowed or retained

waste water for a substantial length of time, that he was forced

to contact the waste water, that he was denied the opportunity to

clean the area, or that he was exposed to disease as a result of

the alleged defective toilet.    See R. 3, 556-57.   With respect to

the leaking roof and walls, the district court determined that

Davies did not allege that the leaking occurred regularly or that

he experienced illness as a result of the conditions.      See id.

at 558.    The district court concluded that the conditions were

not imposed to inflict punishment on Davies and that the

conditions were incident to the management of the detention

facility.    See id. at 557-58. We are persuaded that the court did

not err in these determinations.




                                 IV.

     Appellant contends that the defendants violated his

constitutional rights by housing him for over five months in an

environment in which he was exposed to second-hand smoke.       He

                                   7
contends that this exposure caused headaches, throat irritation,

and burning eyes and exposed him to potential future health

risks, such as cancer.     He asserts that the ventilation system

was clogged and was not cleaned and that the Appellees ignored

his requests for housing in a nonsmoking dormitory.     The

defendants counter that Davies did not show that he was exposed

to excessive levels of second hand smoke, that any exposure to

this caused the symptoms that he experienced, and that the

symptoms he experienced were serious enough to implicate

constitutional concerns.

     In Helling v. McKinney, 509 U.S. 25, 33-35 (1993), the Court

recognized that the Eighth Amendment affords protection to an

inmate from present and future harm caused by exposure to second

hand smoke.   In Whitley v. Hunt, 158 F.3d 882, 887-88 (5th Cir.

1998), and in Rochon v. Angola, 122 F.3d 319, 320 (5th Cir.

1997), cert. denied, 523 U.S. 1025 (1998), this court also

recognized that an inmate’s claim of unwilling exposure to second

hand smoke potentially stated a claim for relief under the Eighth

Amendment.

     The district court granted summary judgment after concluding

that Davies did not produce competent summary judgment evidence

to prove intent or that the exposure was not reasonably related

to a legitimate goal.    It determined that Davies’ five-month

exposure in a jail that had an adequate operating ventilation

system did not constitute a due process violation.     The court

                                   8
found that Davies did not present evidence that he was exposed to

excessive levels of second hand smoke, that his symptoms directly

resulted from this exposure or that he requested segregation from

the smoking inmates.

     We are not persuaded that the district court erred in

determining that the five months exposure, under the

circumstances here present (including an adequate ventilation

system), did not violate the Fourteenth Amendment.   Therefore,

the court appropriately entered summary judgment on this claim.



                            * * * * *



     We have considered all contentions presented by the parties

and conclude that no further discussion is necessary.   We affirm

the judgment of the district court and direct the Clerk to refund

Appellant’s filing fee as discussed in Part I above.



AFFIRMED.




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