Wilson v. Lynaugh

• Decision Date: 02 August 1989
• Docket Number: No. 88-2768,88-2768
• Citation: 878 F.2d 846
• Parties: Willard Barrett WILSON, Plaintiff-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 846

878 F.2d 846

Willard Barrett WILSON, Plaintiff-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections Defendant-Appellee.

No. 88-2768.

United States Court of Appeals, Fifth Circuit.

Aug. 2, 1989.

Cheryl M. Kornick (Law Student), Henry A. Gabriel, Loyola Law School, New Orleans, La., for plaintiff-appellant.

Robin Sanders, Robert S. Walt, Asst. Attys. Gen., Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, WILLIAMS, and JOLLY, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Wilson, an inmate in the Texas Department of Corrections (TDC) since 1979, filed an in forma pauperis (IFP) 42 U.S.C. Sec. 1983 suit alleging that his exposure to environmental tobacco smoke (ETS) violated his Eighth Amendment right to be free from cruel and unusual punishment. The district judge dismissed Wilson's complaint with prejudice as frivolous pursuant to 28 U.S.C. Sec. 1915(d). We affirm on the ground that Wilson's complaint is duplicative, reasserting allegations litigated in a prior suit, and thus may be dismissed as frivolous under Sec. 1915(d).

Round 1

Wilson, a non-smoker, first attempted to secure smoke-free confinement within the TDC in 1980 by filing Wilson v. Estelle, Civil No. H80-1029 (S.D.Tex. Sept. 20, 1983). Wilson claimed among other things that his exposure to tobacco smoke caused him to suffer from "pus filled sores" all over his body and difficulty breathing. He further alleged that the failure of the TDC Director, Estelle, to provide Wilson with non-smoking facilities at TDC constitutes cruel and unusual punishment in violation of his rights under the Eighth Amendment.

Wilson lost Round 1: in 1983 the district court granted the TDC Director's motion for summary judgment and dismissed Wilson's complaint pursuant to F.R.Civ.P. 56. The district court's order of dismissal adopted the memorandum and recommendation of the Magistrate who reviewed Wilson's claim. While the Magistrate found that Wilson had been told that it was "possible" that smoke caused his sores, it also stated that "no such diagnosis was ever made." ¹ The Magistrate further concluded that exposure to ETS did not constitute cruel and unusual punishment, thus extinguishing Eighth Amendment grounds for Wilson's ETS exposure claim. ²

Round 2

The instant case was filed May 16, 1988. Once again Wilson asserts a Sec. 1983 cause of action against the Director of TDC contending that Wilson has been and continues to be harmed by exposure to ETS. Wilson's alleged injuries in the instant complaint are impaired breathing and loss of eyesight. Wilson further complains that when he is in administrative segregation, thus housed separately from non-smokers, he is subjected to smoke from various burning materials in addition to tobacco smoke. These conditions, according to Wilson, constitute cruel and unusual punishment and violate his Eighth Amendment rights.

Wilson enjoyed even less success in this second round of litigation against the Director of TDC. The district court after granting IFP status dismissed the complaint with prejudice on the grounds that it was frivolous. 28 U.S.C. Sec. 1915(a) & (d). Wilson challenges this determination in the instant appeal.

Put Up Your Dukes

Wilson asserts that the district court's 28 U.S.C. Sec. 1915(d) dismissal of his claim as frivolous was error because (i) it failed to recognize that confinement which subjects an inmate to health hazards of ETS can support a Sec. 1983 claim because it implicates Eighth Amendment guarantees against cruel and unusual punishment, (ii) the court failed to investigate fully the legal or factual basis for Wilson's claim before dismissal, i.e. hold a Spears ³ hearing, and (iii) the district judge erred in concluding that the TDC Director could only be held liable by invoking, contrary to the bar of Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct.2018, 56 L.Ed.2d 611 (1978), the doctrine of respondeat superior. We need not reach contentions (ii) and (iii) since not only does (i) fail, but it raises the subsidiary, and we believe controlling, question of whether the instant case is frivolous relitigation of the disposition of Wilson's 1980 claim.

Rhodes to Victory?

In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Supreme Court analyzed limitations the Eighth Amendment places on conditions of confinement within prisons. In grappling for a distinction between conditions of confinement which constitute cruel and unusual punishment and those which are mere restrictions consonant with the penal function of incarceration, the Court directs us to the "evolving standards of decency that mark the progress of a maturing society." Id. at 346, 101 S.Ct. at 2399, 69 L.Ed.2d at 68 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). These standards are to be derived from "objective factors" so as to reflect the mores of society and not merely the subjective views of judges. Id. (citations omitted).

Indicia of confinement constituting cruel and unusual punishment, according to the Rhodes Court, include "wanton and unnecessary infliction of pain," ⁴ conditions "grossly disproportionate to the severity of the crime warranting imprisonment," and deprivation of "the minimal civilized measure of life's necessities." Id. 452 U.S. at 346-47, 101 S.Ct. at 2399, 69 L.Ed.2d at 68-69. But the Court cautions "[t]o the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Id. "When 'the cumulative impact of the conditions of incarceration threatens the physical, mental, and emotional health and well-being of the inmates ...' the court must conclude that the conditions violate the Constitution." Id. at 364, 101 S.Ct. at 2408, 69 L.Ed.2d at 80 (Brennan, J., concurring).

In this Circuit, we have recognized that conditions of confinement which expose inmates to communicable diseases and identifiable health threats implicate the guarantees of the Eighth Amendment. E.g., Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir.1983); Gillespie v. Crawford, 833 F.2d 47, 50 (5th Cir.1987), vacated on other grounds, 858 F.2d 1101 (5th Cir.1988) (en banc). In sum, the Eighth Amendment may afford protection against conditions of confinement which constitute health threats but not against those which cause mere discomfort or inconvenience. ⁵

Technical Knockout

This is not the first time Wilson has complained that his exposure to ETS has caused physical harm and violates the guarantees of the Eighth Amendment. Wilson unsuccessfully advanced this argument in Round 1 of his litigation against TDC. Although the nature of the injury suffered from exposure to ETS is characterized differently in Round 2, the district judge's Sec. 1915(d) dismissal of the instant suit as frivolous was based in part on his classification of the two rounds of litigation as "[r]epetitious litigation of virtually identical causes of action." ⁶ Based on prior cases where this Court has dismissed IFP cases as duplicative and repetitive pursuant to Sec. 1915(d) and analagous principles of res judicata, the instant case (Round 2) is duplicative and properly subject to dismissal as frivolous under Sec. 1915(d). ⁷

Subsequent to the decision of the district court, the Supreme Court held that IFP complaints which fail to pass F.R.Civ.P. 12(b)(6) scrutiny for failure to state a claim are not necessarily frivolous within the meaning of Sec. 1915(d). Neitzke v. Williams, --- U.S. ----, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). ⁸ After Neitzke this Court has held that dismissal of an IFP suit as frivolous pursuant to Sec. 1915(d) is proper if: (1) the claim's realistic chance of ultimate success is slight, or (2) the claim has no arguable basis in law and fact. ⁹ Pugh, 875 F.2d at 438 (5th Cir.1989) (modifying Cay v. Estelle, 789 F.2d 318, 326 (5th Cir.1986)). District courts have broad discretion in determining whether a complaint is frivolous under Sec. 1915(d). See, e.g., Cay, 789 F.2d at 325; Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir.1986). This broad discretion derives from Sec. 1915's dual role of keeping the courtroom doors open to all litigants regardless of financial resources, yet guarding against abuse of this free access by litigants, such as prisoners, who have nothing to lose by flooding courts with suit after suit. See Green, 788 F.2d at 1119-20; Jones v. Bales, 58 F.R.D. 453, 463-64 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973). In Sec. 1915(d) determinations the district judge effectively screens cases which if not for their IFP status would be deterred by either the actual cost of litigation or the imminence of Rule 11 sanctions. Neitzke, 490 U.S. at ----, 109 S.Ct. at 1832-33, 104 L.Ed.2d at 348-49. To this end, IFP complaints may be dismissed as frivolous pursuant to Sec. 1915(d) when they seek to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated by the IFP plaintiff. Bailey v. Johnson, 846 F.2d 1019 (5th Cir.1988) (citing Robinson v. Woodfork, No. 86-3735 (5th Cir. May 22, 1987) (unpublished); McCullough v. Morgan, No. 86-2022 (5th Cir. July 3, 1985) (unpublished); Hill v. Estelle, 423 F.Supp. 690 (S.D.Tex.1976), aff'd, 543 F.2d 754 (1976)).

In the Res Judicata Corner

Wilson urges us to reverse the district court's dismissal of his suit as duplicative on the ground that it is not barred by principles of res judicata. ¹⁰ He first contends that res judicata should not bar his second suit since a once juridically acceptable condition of confinement may later become "cruel and unusual" punishment as a...