                     Revised February 2, 2001

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 99-30863



                         JOHNNY RAY HERMAN,

                                                Plaintiff-Appellant,


                               VERSUS


     LEROY HOLIDAY; RICHARD STALDER; POLICE JURY EAST CARROLL
     PARISH; DETENTION CENTER EAST CARROLL PARISH; JACK WYLY;
 INSURANCE LIABILITY CARRIERS; W. L. PAYNE; EARL K. FORTENBERRY;
 BILLY TRAVIS; GEORGE HOPKINS; BROWN F. NELSON; JOSEPH JACKSON;
           DARRIN DIXON; CLIFTON SCOTT; BOBBY L. MOORE,

                                              Defendants-Appellees.




           Appeal from the United States District Court
               for the Western District of Louisiana


                          January 16, 2001
Before JONES and DeMOSS, Circuit Judges, and BARZILAY*, District
Judge.

DeMOSS, Circuit Judge:

      Johnny Ray Herman (“Herman”), proceeding pro se and in forma

pauperis, appeals from a final judgment entered by the district



  *
     Judge, United States Court of International Trade, sitting by
designation.
court, Judge Robert G. James presiding, which granted summary

judgment to the defendants,           East Carroll Detention Center warden

Leroy Holiday et al. (collectively “the defendants”), with respect

to Herman’s 42 U.S.C. § 1983 claim that the defendants subjected

him to various unconstitutional conditions of confinement at the

East Carroll Detention Center (“ECDC”) all of which violated his

Eighth    Amendment     right    to    be    free   from   cruel      and    unusual

punishment.     The district court, following consideration of a

report and recommendation from a magistrate judge and all of the

objections timely filed thereto, granted the defendants’ motions

for summary judgment, concluding that Herman was not entitled to

declaratory    or     injunctive      relief    because    he   was     no   longer

incarcerated at ECDC and that Herman’s complaint did not otherwise

state a compensable claim because he alleged only psychological,

not physical, injuries.         The district court reasoned that pursuant

to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), a

prisoner may not bring a claim for mental or emotional injuries

suffered while in custody absent a prior showing of physical

injury.

     Having carefully reviewed the entire record of this case, and

having fully considered the parties’ respective briefing on the

issues in this appeal, we AFFIRM the judgment of this district

court.

                                   BACKGROUND



                                         2
      Beginning on or about June 18, 1997, Johnny Ray Herman was

incarcerated for a period of approximately two months at the East

Carroll   Detention   Center   in    East          Carroll   Parish,    Louisiana.1

Herman alleges   that,   while      he       was    incarcerated   at   ECDC,   the

facility was mosquito infested, had insufficient hot water with

which to wash dishes or bathe, did not properly sanitize eating

utensils (some of which were allegedly washed in large trash cans

without soap), served cold food which had been prepared elsewhere

and transported in coolers, contained an open cesspool near the

residence areas of the facility, failed to provide adequate loaner

clothing on laundry days, and was contaminated with asbestos to

which inmates were routinely exposed.

      Herman filed his verified civil rights complaint pursuant to

42 U.S.C. § 1983 on October 14, 1997, and his complaint was twice

amended on June 26, 1998, and December 23, 1998, respectively.

Herman named the following individuals and entities as defendants:

the ECDC; Leroy Holiday (the warden of the ECDC); Richard Stalder

(secretary of the Department of Corrections); Jack Wyly (former co-

owner of the ECDC facility); the East Carroll Parish Police Jury;

and individual police jurors W.L. Payne, Earl Fortenberry, Billy

Travis, George Hopkins, Brown F. Nelson, Joseph Jackson, Darrin

Dixon, Clifton Scott, and Bobby L. Moore.               Herman sought relief in

the form of an injunction, a declaratory judgment, and monetary

  1
     Herman is currently incarcerated in the Dixon Correctional
Institute in Jackson, Louisiana.

                                         3
damages.   Herman alleges damages resulting from mental stress due

to being subjected to allegedly life-threatening conditions and the

possibility of illness.

     Herman first filed a motion for summary judgment unsupported

by any summary judgment evidence, and the defendants subsequently

filed their own cross-motions for summary judgment.               On referral,

federal Magistrate Judge James D. Kirk reviewed the cross-motions

for summary judgment, and on June 1, 1999, entered a report and

recommendation that the defendants’ motions for summary judgment be

granted.    Without deciding whether Herman had asserted a valid

Eighth Amendment claim, the magistrate judge recommended dismissal

because Herman had failed to state a compensable claim.              First, the

magistrate judge concluded that in light of Herman’s transfer from

the ECDC, his claims for declaratory and injunctive relief were

moot.    Additionally, the magistrate judge concluded that in his

complaint, Herman alleged only psychological damages, some of which

related to   his   alleged    increased      risk   of   future     injury   from

exposure to asbestos.        The magistrate judge concluded that the

Prison   Litigation   Reform    Act,       partly   codified   at    42   U.S.C.

§ 1997e(e), bars recovery for emotional or mental damages absent a

showing of physical injury, which was lacking in this case.                  The

district court adopted the report and recommendation and entered a

final judgment overruling Herman’s objections thereto.               Herman has

timely appealed.



                                       4
                        STANDARDS FOR REVIEW

     In this appeal, Herman contends that the district court erred

in granting the defendants’ motions for summary judgment.      We are

guided by the following standards for review of the district

court’s award of summary judgment.     We review the grant of summary

judgment de novo, applying all of the same standards applicable in

the district court.    See Sherrod v. American Airlines, Inc., 132

F.3d 1112, 1119 (5th Cir. 1998).            And we review the summary

judgment evidence in the light most favorable to the non-moving

party, in this case, Herman.    See Melton v. Teachers Ins. & Annuity

Ass’n, 114 F.3d 557, 559 (5th Cir. 1997).       Summary judgment under

Rule 56 of the Federal Rules of Civil Procedure is appropriate only

if

          . . . the pleadings, depositions, answers to
          interrogatories, and 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.

Fed.R.Civ.P. 56(c).

                               DISCUSSION

     Our inquiry into whether the district court erred in granting

the defendants summary judgment must proceed in two steps.      First

we must determine whether Herman has stated or alleged an Eighth

Amendment violation.   Second, assuming he has, we must determine

whether, in light of the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(e), he is entitled to any relief.

                                   5
                              Eighth Amendment Claim

      While the Constitution does not require that custodial inmates

be    housed    in        comfortable   prisons,      the   Eighth    Amendment’s

prohibition against cruel and unusual punishment does require that

prisoners be afforded “humane conditions of confinement” and prison

officials      are    to    ensure   that   inmates    receive   adequate   food,

shelter, clothing, and medical care.               Farmer v. Brennan, 114 S. Ct.

1970, 1976 (1994).            In order to establish an Eighth Amendment

violation regarding conditions of confinement, an inmate must

establish: first, that the deprivation alleged was sufficiently

serious (i.e., an official’s act or omission must have resulted in

the    denial        of    “the   minimal       civilized   measure   of    life’s

necessities”); and second, that the prison official possessed a

sufficiently culpable state of mind.                   See id. at 1977.        The

required state of mind for cases related to prison conditions is

that the official acted with deliberate indifference to inmate

health or safety.           See Palmer v. Johnson, 193 F.3d 346, 352 (5th

Cir. 1999). Deliberate indifference is established by showing that

the defendant officials “(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.”                 Bradley v. Puckett, 157 F.3d

1022, 1025 (5th Cir. 1998).

      With respect to Herman’s allegation that he was exposed to


                                            6
carcinogenic asbestos particles while housed at the ECDC, we note

that the Supreme Court has held that the Eighth Amendment does

protect prisoners from deliberate indifference by prison officials

as to conditions which pose an unreasonable risk of damage to an

inmate’s future health.    In Helling v. McKinney, 113 S. Ct. 2475,

2480-81 (1993), the Court held that an inmate may obtain injunctive

relief under § 1983 based on exposure to environmental tobacco

smoke in the absence of a present physical injury.     But such relief

is conditioned upon a showing that the inmate was exposed to

unreasonably high levels of environmental toxins.        See id.   The

risk must be of such a level that today’s society would not

tolerate it.    See id. at 2482.       Indeed, in Whitley v. Hunt, 158

F.3d 882, 884-85 (5th Cir. 1998), we recognized that a prisoner’s

claim for damages based on involuntary exposure to environmental

tobacco smoke, which endangered present and future health, was not

frivolous.

     In this case, there remain genuine issues of fact with respect

to whether Herman was exposed to levels of asbestos sufficient to

pose an unreasonable risk of serious damage to his future health,

and with respect to whether the ECDC officials were deliberately

indifferent to the risk of potential future injury from such

exposure.    This being said, however, summary judgment may still be

appropriate for the defendants if Herman would not be entitled to

any relief as a matter of law.


                                   7
                   Injunctive and Declaratory Relief

     In Helling, the Supreme Court clearly established that, even

in the absence of any present physical injury resulting from

involuntary exposure to environmental conditions posing a serious

health risk, under § 1983, an inmate may obtain injunctive relief

against continued exposure.       See Helling, 113 S. Ct. at 2481

(stating that “[i]t would be odd to deny an injunction to inmates

who plainly proved an unsafe, life-threatening condition in their

prison on the ground that nothing yet had happened to them.”).         The

prohibitive feature of § 1997e(e), requiring physical injury before

recovery, does not apply in the context of requests for declaratory

or injunctive relief sought to end an allegedly unconstitutional

condition of confinement. See Harper v. Showers, 174 F.3d 716, 719

(5th Cir. 1999).

     In this case, however, we have no doubt that the district

court   properly   concluded   Herman   was   not   entitled   to   either

declaratory or injunctive relief, even if he were able to establish

that he was exposed to asbestos during his custodial incarceration

in violation of the Eighth Amendment.         Herman’s incarceration at

the ECDC was for a short period of time.         Herman’s transfer from

the ECDC to the Dixon Correctional Institute in Jackson, Louisiana,

rendered his claims for declaratory and injunctive relief moot.

See Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084

(5th Cir. 1991).       And any suggestion of relief based on the


                                   8
possibility of transfer back to the ECDC is too speculative to

warrant relief.      See Bailey v. Southerland, 821 F.2d 277, 279 (5th

Cir. 1987).      Thus, we conclude that the defendants are entitled to

summary judgment on Herman’s claims for declaratory and injunctive

relief.

                                   Damages

     In his second amended complaint, Herman sought, in addition to

injunctive and declaratory relief, money damages for “emotional

distress and mental anguish for fear of the unknown disease, such

as the deadly asbistos [sic].”            In his first amended complaint,

Herman sought recovery of money damages for “mental stress, due to

the fear of his life of being subjected to life threatening,

possible illness of these unconstitutional condictions of living

and eating and sleeping while being housed at [ECDC].”             And in his

brief   before    this   Court,   Herman    claims   that   the   defendants’

deliberate indifference “has caused grave emotional and mental

depression.”      Herman also claims “physical health problems” but at

no point in his pleadings, proofs, or briefings, does he specify

any physical injury.

     As the district court correctly noted, under the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(e), Herman may not recover

for emotional or mental damages without a showing of a specific

physical injury.      Specifically, § 1997e(e) provides that

           No federal civil action may be brought by a
           prisoner . . . for mental or emotional injury

                                      9
              suffered while in custody         without    a    prior
              showing of physical injury.

42 U.S.C. § 1997e(e).        No adequate showing of a physical injury has

been made in this case which would permit recovery of either

emotional or mental damages.        In Harper, we specifically held that

if the plaintiff fails to show a physical injury, § 1997e(e) bars

recovery for mental and emotional damages. See Harper, 174 F.3d at

719.    Indeed, in a nearly identical factual scenario, we held that

§ 1997e(e) bars claims for mental and emotional damages caused by

the    fear   that   one’s   exposure    to   asbestos    may   result   in   the

development of an asbestos-related disease.              See Bernard v. Tong,

No. 98-11082, slip op. at 2-3 (5th Cir. Aug. 9, 1999)(unpublished).

Thus, we conclude that as a matter of law, Herman is not entitled

to money damages for physical injury as he has failed to allege

such an injury, and as a result of failing to so allege, pursuant

to § 1997e(e) and our own precedent, Herman is likewise not

entitled to money damages for the mental and emotional stress,

which knowledge of an increased risk of possible future asbestos-

related illnesses may have caused.

       To the extent that Herman’s various complaints can be read as

alleging a claim of damages for the actual increased risk of

developing an asbestos-related injury as a result of his very brief

exposure to asbestos at the ECDC, we decline to characterize such

allegations as sufficiently separate from his claim for emotional

and mental damages so as to constitute an independent category of

                                        10
non-emotional     or   non-mental   damages,   the    recovery   of   which,

§ 1997e(e) would not prohibit.       While we note that in his original

complaint, Herman avers that he was placed in a facility “exposing

the inmates to asbestos,” and that in his first amended complaint

he avers to “being exposed to (asbestos), which has exposed the

plaintiff to a dangerious [sic] dieases [sic],” nowhere in his

complaint   or    proofs   does   Herman   allege    that   he   is   seeking

compensation for the “actual increased risk” of contracting an

asbestos-related disease.         Rather, in every claim for damages,

Herman refers only to the “great and mental stress, due to the fear

of his life . . . being subjected to life threating [sic], possible

illness” and the “grave and emotional and mental depression.”             His

claims for monetary damages can only be described as for mental and

emotional damages, which as discussed above, he is not entitled to

recover in the absence of a prior showing of physical injury under

§ 1997e(e).      We, therefore, reject the contention that by simply

referring to his “exposure to dangerous diseases” Herman has

transformed his claim for mental and emotional damages related to

his fear of contracting a future illness into an independent

category of damages for the value of the actual increased risk that

he may contract such a future illness, which separate category of

damages would not be barred by § 1997e(e).          Simply put, we conclude

that even if Herman were able to establish that he was exposed to

asbestos during his custodial incarceration in violation of the

Eighth Amendment, Herman has failed to allege any category of

                                     11
monetary damages for which he is entitled to recover due to the bar

to such recovery mandated by § 1997e(e).

     Before concluding, we pause to note that with respect to each

of Herman’s other claims for relief (i.e., cold showers, cold food,

unsanitary dishes, insect problems, a lack of adequate clothing,

and the presence of an open “cesspool” near the housing unit),

Herman has    sought   only   damages   for   the   emotional   and   mental

injuries caused by such conditions. We conclude that Herman is not

entitled to an award of money damages as to these claims for the

same reasons he is not entitled to recover money damages for

exposure to asbestos at the ECDC (that is, failure to allege a

physical injury resulting therefrom).           Likewise, for the same

reasons Herman’s claims for injunctive and declaratory relief

regarding his exposure to asbestos must fail (i.e., mootness in

light of his transfer to the Dixon Correctional Institute), we also

conclude that Herman is not entitled to injunctive or declaratory

relief on these additional claims.

                               CONCLUSION

     For all of the reasons discussed above, we conclude that the

various defendants were entitled to judgment as a matter of law on

each and every claim asserted by Herman.            Accordingly, we AFFIRM

the judgment of the district court granting summary judgment to the

defendants.

                AFFIRMED.



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