                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                                                                      F I L E D
                                REVISED OCTOBER 13, 2004
                                                                                       July 20, 2004
                          UNITED STATES COURT OF APPEALS
                                                                                  Charles R. Fulbruge III
                                   FIFTH CIRCUIT                                          Clerk
                                         ____________

                                         No. 03-40977
                                         ____________


               JUAN CHAVARRIA,


                                             Plaintiff - Appellant,

               versus


               DAVID STACKS, Warden; RICHARD ALFORD,                        Major;
               HERBERT KIRTPATRICK, Guard,


                                             Defendants - Appellees.



                          Appeals from the United States District Court
                               For the Eastern District of Texas
                                    USDC No. 9:02-CV-294



Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:*

       Texas prisoner Juan Chavarria appeals the district court’s dismissal of his 42 U.S.C. § 1983

suit as frivolous and for failure to state a claim under 28 U.S.C. § 1915A. Chavarria appeals only


       *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
the denial of his claim that the co nstant illumination of his cell deprives him of sleep, violating his

rights under the Eighth Amendment.

        Chavarria has been confined to administrative segregation (a section of the prison reserved

for the most dangerous prisoners) in the Eastham Unit of the Texas Department of Criminal Justice,

Correctional Institutions Division (“TDCJ-CID”) since April 2000. He alleges that bright fluorescent

lights and light bulbs completely illuminate his cell twenty-four hours a day. He asserts that he cannot

sleep because of these lights. Chavarria submitted two written grievances with the prison regarding

the lighting, specifically explaining that the lighting was causing him to lose sleep. Chavarria also

alleges that he met with Major Richard Alford in response to a hunger strike protesting the lighting.

Alford informed Chavarria that it was necessary to keep the lights on for security reasons. When

Chavarria suggested that the lights could be dimmed during the night and turned up by the guards

when they passed by to inspect the cells, Alford noted that such a practice would be even more

disruptive of sleep. Alford accordingly denied the request to change the lighting.

        Chavarria’s subsequent pro se lawsuit alleging that the constant illumination of his cell

constitutes cruel and unusual punishment violating the Eighth and Fourteenth Amendment was

referred to a magistrate judge by the district court. The magistrate judge conducted all proceedings

in this case pursuant to the parties’ consent under 28 U.S.C. § 636(c). The magistrate judge granted

Chavarria’s motion to proceed in forma pauperis (“IFP”) and withheld service of process subject to

screening under 28 U.S.C. § 1915A. An evidentiary hearing was conducted pursuant to Spears v.

McCotter, 766 F.2d 179 (5th Cir. 1985). At the hearing, Chavarria testified that the strong lights

caused him to see lights, shadows, and spots. Warden Jason Heaton, from the Michael Unit of the

TDCJ-CID, testified that the lights in his unit were kept on all night to permit guards to see inside the


                                                  -2-
cells for security checks. At his unit, however, the lights were dimmed at night when not making a

security check or conducting a count. Chavarria then informed the magistrate judge that this was not

the practice at Eastham but he was requesting that a similar policy be followed.

        The magistrate judge found that, although sleep constitutes a basic human need, Chavarria

had not shown a deprivation rising to the level of an Eighth Amendment violation because there was

no evidence he made complaints to medical personnel about lack of sleep and because the policy was

a reasonable security measure. The magistrate judge dismissed the claim as frivolous because the

complaint lacked any arguable basis in law and failed t o state a claim upon which relief may be

granted.

        The district court is empowered to dismiss a complaint filed by a prisoner against an officer

or employee of a governmental entity if the complaint “is frivolous, malicious, or fails to state a claim

upon which relief may be granted.” 28 U.S.C. §1915A(b)(1). A complaint is legally frivolous when

it is based o n an indisputably meritless legal theory. See Nietzke v. Williams, 490 U.S. 319, 325

(1989). Under § 1915A, we review a dismissal as frivolous for abuse of discretion. See Martin v.

Scott, 156 F.3d 578 (5th Cir. 1998).1 This Court may affirm on any basis supported by the record.

See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.1998).

        We begin by recognizing that while the Constitution does not mandate comfortable prisons,

it does not permit inhumane ones. Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). The

conditions under which a prisoner is confined are subject to scrutiny under the Eighth Amendment,


        1
        Subsequent panel decisions have reviewed dismissals of a claim as frivolous under § 1915A
de novo. See Ruiz v. United States, 160 F.3d 273, 274-75 (5th Cir. 1998); Velasquez v. Woods, 329
F.3d 420, 421 (5th Cir. 2003). When panel opinions are in conflict, the earlier decision controls.
Martin was decided three months prior to Ruiz; accordingly, Martin and the abuse of discretion
standard of review controls.

                                                  -3-
which prohibits the unnecessary and wanton infliction of pain. See Rhodes v. Chapman, 452 U.S.

337, 347 (1981). A two-part test determines whether a prisoner has established a constitutional

violation. Harper, 174 F.3d at 719. First, there is an objective requirement to demonstrate

conditions “so serious as to deprive prisoners of the minimal measure of life’s necessities,” as when

the priso ner is denied “some basic human need.” Woods v. Edwards, 51 F.3d 577, 581 (5th Cir.

1995); Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, under a subjective standard, it must

be shown that the responsible prison officials acted with deliberate indifference to the prisoner’s

conditions of confinement. Woods, 51 F.3d at 581. “The second requirement follows from the

principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.”

Farmer, 511 U.S. at 834 (internal quotation marks and citations omitted) (emphasis added).

Accordingly, while conditions of confinement that constitute severe deprivations without penological

justification violate a prisoner’s rights under the Eighth Amendment, a prison regulation that infringes

upon a prisoner’s constitutional rights will be upheld if it is reasonably related to legitimate

penological interests. See Rhodes, 452 U.S. at 347; Talib v. Gilley, 138 F.3d 211, 214 (5th Cir.

1998). Moreover, prison officials are not required to adopt the policy least restrictive of prisoners’

rights, so long as the policy itself is reasonable. Talib, 138 F.3d at 215 n.4.

       This court has recognized that sleep constitutes a basic human need. Harper, 174 F.3d at

720. Even assuming arguendo that Chavarria has alleged conditions leading to a sleep deprivation

sufficiently serious to be cognizable under the Eighth Amendment,2 Chavarria cannot establish an


       2
         It is, however, far from clear that Chavarria has alleged a harm cognizable under the Eighth
Amendment. Although sleep is a basic human need, only conditions sufficiently serious as to deprive
a prisoner of the minimal civilized measure of life’s necessities are cognizable under the Eighth
Amendment. See Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995). Here, Chavarria asserted
that he only gets between “30 to 35 hours per day” of sleep. It is unclear from this apparent typo

                                                  -4-
Eighth Amendment violation because he cannot show that his deprivation is unnecessary and wanton.

According to Chavarria, he was told by defendant Major Alford that the lights were kept on in the

administrative segregation area for security reasons to prevent guards being assaulted by an inmate

in a dark cell. A policy of dimming the lights at night and brightening them each time the guards

passed by the cell would be even more disruptive to inmate sleep and thus was not an alternative that

would fully accommodate the prisoner’s right to sleep. See Turner v. Safley, 482 U.S. 78, 91 (1987)

( “[A]n alternative that fully accommodates the prisoner's rights at de minimis cost to valid

penological interests may indicate a regulation is not reasonable”). The policy of constant

illumination is thus reasonably related to the legitimate penological interest of guard security.3



how much sleep Chavarria actually gets, and thus whether he has been deprived of the minimal
measure of life’s necessities is indeterminate. Moreover, we question whether Chavarria has alleged
conditions serious enough to cause sleep deprivation. However, because we are reviewing this case
under §1915A, we assume without deciding that the conditions alleged by Chavarria are sufficient
to satisfy the non-frivolous threshold at this stage of the proceedings.
       3
          Although other courts have found that there is no legitimate penological justification in
constant illumination, these cases were premised on the notion that the defendants offered no reason
why the cells could not have switches outside so that the guards might see in when they needed to.
See Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir. 1996); LeMaire, 745 F. Supp. 623, 626
(D.Or.1990). “[I]f an inmate claimant can point to an alternative that fully accommodates the
prisoner's rights at de minimis cost to valid penological interests, a court may consider that as
evidence that the regulation does not satisfy the reasonable relationship standard.” Turner v. Safley,
482 U.S. 78, 91 (1987). Here, however, the prison officials offered a reason why the cells could not
have lights on the outside: they contend that it would be just as disruptive to sleep to have the lights
turned on and off repeatedly during the night. We accept the judgment by the prison officials that
turning bright lights on only when needed would be as disruptive because “[w]e will not . . .subject[]
the day-to-day judgments of prison officials to intrusive second-guessing.” Talib v. Gilley, 138 F.3d
211, 215 (5th Cir. 1998). The alternative suggested by Chavarria would not fully accommodate
prisoners rights. Accordingly, under these circumstances, there is a legitimate penological
justification for the constant illumination policy. Accord Shepherd v. Ault, 982 F. Supp. 643, 647
(N.D. Iowa 1997) (“[W]hether constant lighting serves a legitimate penological purpose depends
upon the circumstances of the case.”).


                                                  -5-
Accordingly, the enforcement of the policy does not violate the Eighth Amendment. See Talib, 138

F.3d at 214. Because the policy of 24-hour illumination does not violate the Eighth Amendment,

Chavarria’s complaint about the policy is based upon an indisputably meritless legal theory. The

magistrate judge’s determination that Chavarria’s lawsuit was frivolous was correct.

       AFFIRMED.




                                               -6-
REAVLEY, Circuit Judge, Specially Concurring:

     I concur with the affirmance, but in the judgment only.   But

with deference to those who are concerned about Mr. Chavarria’s

illuminated cell, I regard this judicial attention as much ado

about nothing.   A little cloth over his eyes would solve the

problem, negate deprivation, and escape this exercise in frivolity.




                                -7-
KING, Chief Judge, dissenting:

     Even though this court has recognized that sleep is a basic

human need, the denial of which can violate the Eighth Amendment,

this court today decides that a prisoner’s allegation that he is

being    deprived    of    sleep    is     frivolous--i.e.,        based   on   an

“indisputably meritless legal theory.”              Berry v. Brady, 192 F.3d

504, 507 (5th Cir. 1999) (emphasis added) (citation and internal

quotation marks omitted).          I would hold that the magistrate judge

abused his discretion in dismissing Chavarria’s claim as frivolous,

vacate the district court’s dismissal for failure to state a claim,

and remand for further proceedings.              Accordingly, I respectfully

dissent.

     Prison conditions deprive an inmate of “the minimal civilized

measure of life’s necessities”--the first element of a conditions-

of-confinement claim--when those conditions deny him “some basic

human need.”    Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995)

(per curiam); accord Harper v. Showers, 174 F.3d 716, 720 (5th Cir.

1999).     In Harper, this court declared that “sleep undoubtedly

counts as one of life’s basic needs.”            174 F.3d at 720.     There, the

district    court    had   dismissed       the    plaintiff’s      complaint    as

frivolous, and we reversed, explaining that “[c]onditions designed

to prevent sleep . . . might violate the Eighth Amendment.”                     Id.

If, therefore, Chavarria’s complaint alleges a “denial” of--i.e.,

a serious deprivation of--the basic need of sleep, his Eighth

Amendment    claim   is    certainly      not    based   on   an   “indisputably

                                         -8-
meritless legal theory.”

     Liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-

21 (1972) (per curiam), Chavarria’s complaint alleges a denial of

sleep resulting from the bright lights that unceasingly illuminate

his cell.   Specifically, according to Chavarria, a total of six

lights, three of them with fluorescent bulbs, shine into his cell

twenty-four hours per day.     There is no place, he says, where he

can gain a respite from the strong lighting; even the area under

his bed is well lit.    Chavarria further avers that this practice of

illuminating his cell at all times prevents him from getting

sufficient sleep.     He alleges that he “must sit and take the light

rays all night long until[] sleep will outweigh[] the light and he

will fall asleep.”4

     4
           Chavarria’s complaint also states that “[a]fter 16 Months
under this kind of punishment sleep would now comes to the
plaintiff only every 30 to 35 Hours per day [sic].” Judge Garza
interprets this allegation as follows: “Chavarria asserted that he
only gets between ‘30 to 35 hours per day’ of sleep.” Garza op. at
4 n.2.    Ignoring our obligation to construe pro se pleadings
liberally, see Haines, 404 U.S. at 520-21, Judge Garza then
concludes that this “apparent typo” in the complaint prevents us
from determining whether Chavarria has alleged a deprivation
cognizable under the Eighth Amendment. But a reasonable reading of
this sentence, in the context of the entire complaint, is that
Chavarria goes without sleep for thirty to thirty-five hours at a
time due to the illumination of his cell. Moreover, we should keep
in mind that this appeal comes at a preliminary stage of the
proceedings; a Spears hearing on remand would be the appropriate
time for the magistrate judge to ask Chavarria to clarify this
factual allegation.
     Judge Garza additionally questions “whether Chavarria has
alleged conditions serious enough to cause sleep deprivation.”
Garza op. at 4 n.2. I, at least, do not feel qualified to opine
that having bright lights shine onto one’s face twenty-four hours
per day could not interfere with a person’s ability to sleep.

                                  -9-
     Chavarria’s complaint also avers that his lack of sleep has

resulted in adverse physical effects, for example, seeing “black

spots and shadows that are in reality not there” and experiencing

“headaches” and a feeling of “bugs jumping and clawing all over his

body.”   Moreover, at the Spears hearing, Chavarria testified that

the lights are “very bright” and “very strong” and that they hurt

him and cause him to see “lights, and shadows, and spots.”     See

Eason v. Holt, 73 F.3d 600, 602-03 (5th Cir. 1996) (explaining that

a prisoner’s testimony during a Spears hearing becomes part of his

pleadings).    Finally, according to his complaint, Chavarria has

been subjected to this constant, strong illumination since April

2000--over four years.   See Hutto v. Finney, 437 U.S. 678, 686-87

(1978) (recognizing that “the length of confinement cannot be

ignored in deciding whether the confinement meets constitutional

standards”).   Considering these allegations, I cannot agree that

Chavarria has failed to allege a deprivation of the basic need of

sleep.

     Next, I turn to the second element of Chavarria’s conditions-

of-confinement claim: deliberate indifference.   To state a claim,

a prisoner must aver that the defendant prison officials knew of

the complained-of conditions and nevertheless disregarded them.

See Farmer v. Brennan, 511 U.S. 825, 829, 837 (1994); see also

Harper, 174 F.3d at 720.   Chavarria states that both defendants,

Warden Stacks and Major Alford, are aware of his objections to the

constant illumination and that they have disregarded his concerns.

                               -10-
Thus, Chavarria’s complaint adequately asserts that the defendants

are acting “with deliberate indifference to his conditions of

confinement.”      Harper, 174 F.3d at 720.            Because he has alleged

both that he is being deprived of the basic need of sleep and that

the   defendants    are   deliberately        indifferent     to   the   condition

causing this deprivation, Chavarria’s claim that the constant,

bright lighting constitutes cruel and unusual punishment is, at the

least, not indisputably meritless.            Thus, in my view, the district

court abused its discretion in dismissing the claim as frivolous,

and reversal is required.       Cf. id. at 720 & n.11.

      Judge   Garza’s     conclusion    that    Chavarria’s        allegations    of

deliberate indifference are frivolous rests on his determination

that the alternative presented by Chavarria--dimming the lights at

night and brightening them when the guards pass by--would disrupt

the inmates’ sleep more than the constant, bright lighting.                    From

where does Judge Garza derive this hypothesis about the conditions

that would best promote inmates’ sleep?               Not from the defendants,

they were never served.         The only representative of the Texas

prison system who has been heard from in this case, Warden Heaton,

testified at the Spears hearing that both his Unit and the Eastham

Unit, where Chavarria is housed, generally follow the policy

advocated     by   Chavarria--i.e.,       dimming       the     lights    in     the

administrative-segregation       area     at     night.       Furthermore,       the

magistrate judge relied on Warden Heaton’s testimony in dismissing

Chavarria’s     suit,     concluding    that     “a    policy      providing     for

                                       -11-
illumination permitting guards to see inside cells is a reasonable

security measure, not a deliberate attempt to cause pain.”5                               In

sum, today’s decision reflects the view of one appellate judge, and

the   basis   for     that      view   (that       dimming   the        lights   would    be

counterproductive) contradicts the factual premise underlying the

positions     of    both    the    magistrate       judge    and    the       Texas   prison

system’s representative (that the lights are, in fact, being

dimmed).

      In   addition        to   holding     (erroneously,          in    my    view)    that

Chavarria’s        claim   is     legally    frivolous,      the    magistrate         judge

concluded that his complaint fails to state a claim for which

      5
          We cannot affirm based on the magistrate judge’s
rationale because he apparently discredited Chavarria’s testimony
that the bright lights constantly shining into his cell are not
dimmed at night.    After Warden Heaton testified at the Spears
hearing, Chavarria explained that he only wanted the defendants to
follow a similar policy of dimming the lights at night so that he
can sleep. The magistrate judge responded that, while a particular
officer may fail to follow the policy, he believed Warden Heaton’s
testimony that the Eastham Unit has a policy of turning down the
lights at night. Even if Warden Heaton had personal knowledge of
the lighting practices at the Eastham Unit (where he does not
work), the district court simply cannot resolve disputed issues of
fact at a Spears hearing. See Adams v. Hansen, 906 F.2d 192, 194
(5th Cir. 1990) (“The district court’s rejection of [the
prisoner’s] allegation that the defendant acted maliciously
transcends the proper scope of a Spears hearing. . . . The Spears
hearing is not a trial on the merits; it is in the nature of an
amended complaint or a more definite statement.”).            Since
Chavarria’s factual assertions regarding the constant, bright
lighting are not clearly baseless, Denton v. Hernandez, 504 U.S.
25, 32 (1992), the magistrate judge should have proceeded under the
assumption that the lights on his cell are not being turned down at
night.   See id. at 32-33 (“[A] court may dismiss a claim as
factually frivolous only if the facts alleged are ‘clearly
baseless,’ a category encompassing allegations that are ‘fanciful,’
‘fantastic,’ and ‘delusional.’” (citations omitted)).

                                            -12-
relief can be granted.                  I recognize that this determination, if

correct, suffices to sustain the judgment of dismissal.6                                    But I do

not believe that this preliminary stage in the proceedings is the

appropriate time to resolve a question of first impression in this

circuit regarding whether a prisoner deprived of sleep by bright

lights directed into his cell can state an actionable claim under

the Eighth Amendment.7                 Section 1915A erects a screening process

for prisoner suits and empowers a district court to dismiss suits

that fail to state a claim for relief under applicable law.                                        Even

so, I do not read § 1915A as mandating that a court decide, before

the defendants have even been served, a res nova issue concerning

the cognizability of a particular claim.8                          I would therefore vacate

the magistrate judge’s § 1915A failure-to-state-a-claim dismissal



        6
                Nevertheless, I also observe that the distinction between frivolousness and failure to
state a claim can be significant. For example, a Texas prisoner who files two or more suits that are
dismissed as frivolous loses portions of his good-conduct credits. See TEX. GOV’T CODE ANN.
§ 498.0045 (Vernon Supp. 2004).
        7
                At least one other court of appeals has held that requiring inmates to live in constant
illumination that deprives them of sleep violates the Eighth Amendment. Keenan v. Hall, 83 F.3d
1083, 1090-91 (9th Cir. 1996). Contrary to Judge Garza’s description of Keenan, Garza op. at 5 n.3,
that case does not rely on the defendants’ failure to explain why the cells could not have light
switches on the outside of them; nothing of the sort is mentioned in the opinion. 83 F.3d at 1090-91.
        8
               As Judge Garza recognizes, Garza op. at 5 n.3, the cases from other circuits involving
complaints about twenty-four-hour lighting turn on the particular facts presented--such as the severity
and duration of, and the defendants’ justification (if any) for, the lighting--making a disposition at the
pleading stage problematic. Cf. Shepherd v. Ault, 982 F. Supp. 643, 645 (N.D. Iowa 1997) (denying
the defendants’ motion for summary judgment in a constant-illumination case and noting that
“[v]arious courts have considered claims that continuous illumination of cells constituted a violation
of prisoners’ Eighth Amendment rights, with mixed results. The reason for such mixed results on
‘constant illumination’ claims . . . is that such cases are fact-driven.”).

                                                 -13-
of Chavarria’s Eighth Amendment claim regarding the lighting of his

cell.      And I would direct the district court on remand to order

service of process on Warden Stacks and Major Alford.                                 Then, the

district court would be in a better position to evaluate, in light

of the guidance provided herein and with the benefit of adversary

presentation, whether Chavarria has stated a claim for which relief

can be granted.9

       Accordingly, because this court has recognized the legal

theory under which Chavarria proceeds, I respectfully dissent from

the decision to affirm the district court’s dismissal of his suit

as frivolous.         With a little more process, this case might well be

decided against the prisoner.                   But it needs some lawyering before

that happens, and, as the late Judge Alvin B. Rubin was given to

saying, it wouldn’t hurt to sprinkle it with a little due process.




       9
               This could occur in one of three ways. As always, the defendants may file a motion
to dismiss under Rule 12(b)(6). Alternatively, the Prison Litigation Reform Act provides the district
court with two additional options for dismissing Chavarria’s action sua sponte. Since Chavarria is
proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) authorizes dismissal for failure to state
a claim at any time. Also, 42 U.S.C. § 1997e(c)(1) permits a district court to
dismiss a § 1983 suit brought by prisoner “if the court is
satisfied that the action . . . fails to state a claim upon which
relief can be granted.” See generally Grayson v. Mayview State
Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002) (elaborating on
the relationship between §§ 1915A, 1915(e)(2), and 1997e(c)).

                                               -14-
