Egana v. Dept of Corrections, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 8, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-31051
Summary Calendar
DENAUD EGANA,
Plaintiff-Appellant,
versus
DEPARTMENT OF CORRECTIONS; ET AL.,
Defendants,
A. MAYEUX, Nurse; JAMES LEBLANC,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 01-CV-649-A
--------------------
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Denaud M. Egana, Louisiana prisoner # 410663, who was
formerly incarcerated at the Dixon Correctional Institute,
appeals from the dismissal of his claims against Warden James
LeBlanc for failure to state a claim on which relief may be
granted. Egana contends that his right against cruel and unusual

-- 1 of 3 --

No. 02-31051
-2-
punishment was violated because he was exposed to unusually high
levels of environmental tobacco smoke (ETS); because his transfer
request to a nonsmoking dormitory was denied; and because he was
not transferred to a nonsmoking area despite Warden LeBlanc’s
assurance that he would be considered for a transfer once
nonsmoking accommodations became available. According to Egana,
nonsmoking accommodations became available in the two years
following the denial of his grievances, yet he was not
transferred.
Egana failed to state a claim that Warden LeBlanc was
deliberately indifferent for denying Egana’s transfer to a
nonsmoking area due to space unavailability in September 1999.
Helling v. McKinney, 509 U.S. 25, 36 (1993). As to that claim,
the district court’s judgment is AFFIRMED.
Egana did allege that space had become available since
his transfer request was rejected and that he had not been
transferred. He alleged that he was confined in a dormitory of
about 66 men, more than half of whom were smokers, that ETS was
abundant and concentrated, that he was a nonsmoker with asthma,
and that he had suffered lung difficulties due to his ETS
exposure. It is conceivable that Egana was exposed to an
unreasonably high level of ETS. Helling, 509 U.S. at 35.
Both Warden LeBlanc and the official who addressed Egana’s
third-step response indicated that Egana would be considered for
a transfer once space became available in a nonsmoking area. The

-- 2 of 3 --

No. 02-31051
-3-
language used in the responses to Egana’s grievances can be read
as suggesting that prison officials would act affirmatively to
have Egana transferred. It is unclear from the record whether
Warden LeBlanc is personally responsible for ensuring that
transfers occur in such a circumstance, see Thompkins v. Belt,
828 F.2d 298, 303-04 (5th Cir. 1987) (supervisory liability), or
whether he should have notified the responsible official that
Egana was to be moved when space became available.
It is conceivable that Egana can prove that Warden LeBlanc
acted unreasonably and with deliberate indifference by failing to
have him moved when and if space became available in a nonsmoking
area, particularly if Egana has asthma. Helling, 509 U.S. at 36.
As to Egana’s claim that Warden LeBlanc violated his Eighth
Amendment right by failing to have him transferred, the district
court’s judgment dismissing that claim for failure to state a
claim is VACATED AND REMANDED.
AFFIRMED in part; VACATED in part; and REMANDED.

-- 3 of 3 --