     Case: 13-30054      Document: 00512631668         Page: 1    Date Filed: 05/15/2014




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

                                    No. 13-30054                                   FILED
                                  Summary Calendar                             May 15, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
ROBERT BRUCE,

                                                 Plaintiff-Appellant

v.

BODIE LITTLE; DANIEL ALSUP; SHERIFF’S OFFICE OF WINN PARISH;
TOMMY FOSTER; WALTER HAMPTON; PHILLIP VINES,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-1541


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM: *
       Robert Franklin Bruce, Louisiana prisoner # 397176, filed a 42 U.S.C.
§ 1983 complaint and amended complaint against several officials at the Winn
Parish Jail. According to Bruce, he underwent a quadruple bypass surgery
prior to being transferred to Winn Parish Jail. Following his transfer, he fell
in the shower and was injured, but jail officials failed to provide treatment. He



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-30054

also alleged that jail officials refused to transport him to scheduled follow up
appointments at LSU Medical Center and failed to provide treatment despite
his suffering various symptoms related to his heart condition and loss of vision
in one eye. He further alleged denial of access to courts and a claim of exposure
to environmental tobacco smoke (ETS). In addition to monetary damages,
Bruce sought injunctive relief. On recommendation of the magistrate judge,
and over objections by Bruce, the district court sua sponte dismissed the
complaint with prejudice, determining that Bruce’s allegations failed to state
a claim regarding denial of medical care and denial of access to courts; that his
ETS claim, first raised in his objections, was not within the scope of his
amended complaint; and that his claim for injunctive relief was moot in light
of Bruce’s transfer to another facility. For the following reasons, we affirm in
part, vacate in part, and remand for further proceedings.
      A district court shall at any time dismiss a prisoner’s § 1983 complaint
if, inter alia, it fails to state a claim.   28 U.S.C. § 1915A(b); 28 U.S.C.
§ 1915(e)(2)(B). We review the dismissal of a complaint for failure to state a
claim de novo. Hart v. Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003). A
complaint must set forth enough facts, accepted as true, “to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citations omitted). However, “[a] document filed
pro se is to be liberally construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citations omitted). Further, before dismissing a pro se
complaint, a district court ordinarily should give the litigant an opportunity to
amend. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Eason v. Thaler,
14 F.3d 8, 9 (5th Cir. 1994). In addition, Rule 15 of the Federal Rules of Civil



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Procedure permits amendment once as a matter of course and otherwise
provides that leave to amend should be freely given. FED. R. CIV. P. 15(a).
      Bruce’s objections to the magistrate judge’s report may be construed as
seeking leave to amend, see United States v. Riascos, 76 F.3d 93, 94 (5th Cir.
1996), which the district court effectively denied by overruling the objections
and adopting the report. We conclude that this was an abuse of discretion. See
id.; see Lowrey v. Texas A&M University System, 117 F.3d 242, 245 (5th Cir.
1997). We now turn to whether Bruce’s pleadings set forth sufficient facts to
state a claim.
      Eighth Amendment Claims
      To state an Eighth Amendment claim based on prison conditions, a
plaintiff must show a sufficiently serious deprivation and must show that
the relevant official or officials acted with deliberate indifference to inmate
health or safety. Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001)
(citations omitted). With respect to medical care, prison officials violate the
Eighth Amendment’s prohibition against cruel and unusual punishment when
they demonstrate deliberate indifference to a prisoner’s serious medical needs,
constituting an unnecessary and wanton infliction of pain. See Wilson v. Seiter,
501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
      Bruce alleged that he fell in the shower and injured himself and that the
jail failed to provide treatment. According to Bruce, the shower did not drain,
requiring inmates to stand on a milk crate to avoid standing in water.
Although he was given nitroglycerin after his fall, Bruce alleged that he also
injured his chest, back, neck, shoulders, knees and left hand and was not given
treatment for these injuries. In addition, he continued to complain of pain,
shortness of breath, and decreased mobility in his knees but was not treated.
Further, he was later diagnosed with injuries as a result of his fall.



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      To the extent that Bruce challenges an unsafe condition with respect to
the shower, he alleged that officials knew of the problem and took no steps to
alleviate it. This is sufficient to state a claim based on an unsafe condition. To
the extent that Bruce complains that he was not provided medical treatment
for the injuries he sustained as a result of the fall, Bruce’s allegations set forth
enough facts to state a plausible claim that jail officials were deliberately
indifferent.
      In addition to the fall in the shower, Bruce alleged that he fainted in his
cell on more than one occasion and suffered other symptoms, including
shortness of breath, weakness, difficulty walking, nausea, and blue lips, all
related to his heart condition. He also continued to experience problems with
his eye. According to Bruce, he was examined by the parish coroner, who told
officials that Bruce needed to be seen by his physicians at LSU Medical Center
to determine why he was experiencing his symptoms, but they refused. After
one fainting episode, he was allegedly left on the ground for several minutes
and told by the warden he would have to walk down the stairs if he wanted to
go to the hospital. He was unable to do so, and inmates had to help carry him
down the stairs to the ambulance. Although he was treated at the hospital
with oxygen and nitro spray, a physician at the hospital allegedly told the
transport guards and a nurse that Bruce needed to be seen by his LSU
physicians to determine the cause of his symptoms. However, they refused to
take him to LSU. In addition, according to Bruce, jail officials refused to take
him to scheduled follow-up medical appointments. Taken as true, Bruce’s
allegations are sufficient to state a plausible claim of deliberate indifference to
a serious medical need. See Easter v. Powell, 467 F.3d 459, 461-63 (5th Cir.
2006); Erickson, 551 U.S. at 94.




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      Bruce further alleged that he suffered trouble breathing as a result of
exposure to ETS. Prison officials may violate the Eighth Amendment by, with
deliberate indifference, exposing inmates to excessive levels of ETS. Helling v.
McKinney, 509 U.S. 25, 35–39 (1993); Rochon v. City of Angola, La. 122 F.3d
319, 320 (5th Cir. 1997) (per curiam). Bruce alleged that five to six prisoners
would smoke at a time, exposing everyone to the smoke; that guards were
unable to see due to a metal wall blocking their view of the cells; that the jail’s
no-smoking policy was not enforced; that when inmates ran out of cigarettes,
they purchased smokeless tobacco, dried it, and then rolled it into cigarettes;
and that he complained about the smoking to no avail. He also alleged that
the exposure contributed to his worsening health problems, including his
difficulty breathing, his chest pains, his nausea, his fainting, and his coronary
artery disease. Although imperfect, given liberal construction, his allegations
state a claim for ETS exposure.
      Denial of access to courts
      Bruce also alleged that he was denied access to courts by various actions
by the warden, resulting in dismissal of certain matters. As the magistrate
judge concluded, Bruce was required to identify a “nonfrivolous, arguable
underlying claim” that he would have raised. Christopher v. Harbury, 536 U.S.
403, 415 (2002). Bruce did not do so in his objections, nor does he do so in his
brief to this court. Bruce has thus abandoned any claim of error on this point.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Americans with Disabilities Act Claims
      Intertwined with his constitutional claims, Bruce alleged in a conclusory
fashion that the defendants’ actions violated the Americans with Disabilities
Act (ADA). However, Bruce failed to allege any facts supporting an ADA claim.




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Further, he offers only conclusory assertions of ADA violations in his brief and
has abandoned any such argument. See Yohey, 985 F.2d at 224-25.
      Injunctive relief
      The district court correctly concluded that Bruce’s claim for injunctive
relief against Winn Parish Jail was rendered moot by his transfer.             See
Herman, 238 F.3d at 665.          Bruce’s brief does not expressly contest this
conclusion, and he has thus abandoned any challenge to it. See Yohey, 985
F.2d at 224.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED in part and VACATED in part, and this matter is REMANDED
for further proceedings consistent with this opinion. We intimate no opinion
regarding the merits of any of Bruce’s claims.




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