*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40210

Summary Calendar

 

RONALD M. HOENIG,

Plaintiff-Appellant,

versus

JAMES A. COLLINS, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL

DIVISION; HERBERT L. SCOTT, Senior Warden,

Defendants-Appellees.

 

Appeal from the United States District Court for the

Southern District of Texas

(G-94-CV-265)

 

July 29, 1996

Before GARWOOD, WIENER and PARKER, Circuit Judges.*

PER CURIAM:

Plaintiff-appellant Ronald M. Hoenig (Hoenig), a prisoner of

the State of Texas, proceeding pro se and in forma pauperis, filed

this civil rights action against James A. Collins, the Director of
2

the Texas Department of Criminal Justice (TDCJ), and Herbert L.

Scott, the Senior Warden of the Ramsey One Unit, alleging a

violation of his Eighth Amendment rights. Hoenig stated that a

project was begun in October or November 1993 employing inmates to

remove asbestos from the ceilings of the Ramsey One Unit where he

was confined. The work area was separated from the remainder of

the unit by a single sheet of plastic with a slit from top to

bottom to provide access for workers and free airflow. Hoenig

alleged that he has been exposed constantly to the asbestos, dust,

and debris since the work began. He alleged he was housed

approximately twelve feet from the work area and was required to

walk within six inches of the sheet of plastic on his way to the

shower, his work assignment, and the dining area. He alleged that

the defendants had to know that the dust from the asbestos presents

a risk of contracting asbestosis and mesothelioma and blatantly

disregarded his health and safety by exposing him to a dangerous

substance. Hoenig sought monetary damages and equitable relief.

In response to the magistrate judge’s order to submit a more

definite statement, Hoenig stated that for some time asbestos from

the ceiling had fallen into his food. After the removal work

began, prison officials did not provide protective gear, and he had

no choice but to breathe the particles floating in the air. In his

second response to the magistrate judge’s interrogatories, Hoenig

stated he was exposed to the class A carcinogen from 1992-1994, he

had not been diagnosed with asbestosis, every inmate on the unit
3

was exposed, and he was retaliated against for seeking redress in

the courts.

Hoenig filed a motion for a temporary restraining

order/preliminary injunction and a supporting brief, alleging that

prison officials retaliated against him for filing this lawsuit in

the following manner: he was transferred several times from unit

to unit far from his family, his legal materials were confiscated

during each move, he had no access to a law library or mail room to

mail his pleadings, and he was locked in a cell for 24 hours a day.

Hoenig added that, even though he was a minimum security inmate, he

was housed in a single cell surrounded by handcuffed, close-custody

inmates; his movement and privileges were severely restricted; and

he was deprived of medication for his heart. He feared for his

safety and asked the district court to issue an order prohibiting

these acts of retaliation.

The district court did not rule on Hoenig’s motion, and

approximately ten months later, Hoenig filed a second motion for

injunctive relief. He reiterated his claims of retaliation through

multiple transfers, punishment in administrative segregation

without a hearing, deprivation of his legal materials, and loss of

privileges. Hoenig feared for his safety and asserted that there

was a real chance he would be injured or killed. He asked the

district court to construe his allegations of additional

violations, in particular the retaliation and denial-of-access-tocourts claims, as amendments to his complaint.
1The district court stated that the claim had “no arguable

basis in law and fact, and no realistic chance of ultimate

success.” The proper standard is no arguable basis in law or fact.

See Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir 1993).

4

The magistrate judge determined that Hoenig did not allege

that he was injured from his exposure to asbestos and that his

allegations that he could suffer unspecified harm at a future date

was not of constitutional magnitude. Further, Hoenig had not

alleged that the defendants intentionally exposed him to asbestos

to harm him. The magistrate judge recommended that the district

court dismiss the case as frivolous.

Hoenig filed objections to the magistrate judge’s report and

recommendation. He countered the magistrate judge’s determination

that he had alleged no harm by referring to his more definite

statement that he had developed a cough and that his liver test was

two hundred points above normal. Moreover, Hoenig repeated that

the defendants were responsible for the project and that the

inmates would not have removed asbestos without the warden’s

knowledge. He asserted that he did not allege that the defendants

affirmatively planned to expose him to asbestos; however, it was

his belief that the defendants decided that they would not spend

the money to do the job right because only convicted felons were

affected.

The district court adopted the magistrate judge’s report and

dismissed the action with prejudice pursuant to 28 U.S.C. §

1915(d).1
5

Hoenig asserts that he was exposed to solid asbestos and

asbestos dust during its removal from his unit by other inmates.

Relying on Helling v. McKinney, 509 U.S. 25 (1993) (a secondary

smoke case), he contends that the exposure was of constitutional

magnitude because asbestos is a class A carcinogen. Hoenig argues

that the defendants had first hand knowledge concerning the removal

of asbestos because the Director would have to approve the

appropriation, and the warden would have to approve all maintenance

work of that magnitude.

To determine if the Eighth Amendment has been violated, the

court applies a subjective component to the deliberate indifference

standard. Helling at 32. “[A] prison official may be held liable

under the Eighth Amendment for denying humane conditions of

confinement only if he knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” Farmer v. Brennan, 114 S.Ct.

1970, 1984 (1994). To constitute an Eighth Amendment violation,

such failure to take reasonable measure must be subjectively

deliberately indifferent. Hare v. City of Corinth, 74 F.2d 633,

649-50 (5th Cir. 1996). Inmates are entitled to relief from

threats to their safety; they “need not await a tragic event” in

the future. Helling, 509 U.S. at 33.

In addition to the subjective factor, there is an objective

factor. Id. at 35. The inmate must show that he himself is being
6

exposed to the substance. Id. Moreover, a violation of “the

Eighth Amendment requires more than a scientific and statistical

inquiry into the seriousness of the potential harm and the

likelihood that such injury to health will actually be caused by

exposure” to toxic substances. Id. at 36. “[T]he prisoner must

show that the risk of which he complains is not one that today’s

society chooses to tolerate.” Id.

In light of Helling, Hoenig’s Eighth Amendment claim that he

was exposed to a risk of future harm is not facially “fanciful,

fantastic, and delusional.” See Denton v. Hernandez, 504 U.S. 25,

32-33 (1992). On the present record, it is not now possible to say

that Hoenig’s claim lacks any arguable basis in fact or law. While

further development may well show that Hoenig will unarguably be

unable to demonstrate the requisite deliberate indifference by

Scott or Collins, or fail to meet some other required element of

his claim, such a determination is premature on this record, as is

a determination that Hoenig will be entitled to no prospective

relief. Further development of the facts through a hearing of some

sort——possibly one under Spears v. McCotter, 766 F.2d 179 (5th Cir.

1985)——and/or a response by defendants is called for before

dismissal would be appropriate.

Hoenig also asserts that the district court erred in

dismissing his complaint without allowing him to amend his

pleadings. He specifically wanted to include claims of 1)
7

retaliation through multiple transfers and segregated confinement

for filing this and other actions and 2) denial of access to the

courts through confiscation and loss of his legal materials. He

contends that so many documents are missing he is no longer able to

challenge his criminal conviction.

“A party may amend the party’s pleading once as a matter of

course at any time before a responsive pleading is served . . . .”

Fed. R. Civ. P. 15(a). The defendants were not served; therefore,

Hoenig could exercise his right to amend automatically. See Zaidi

v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir. 1984).

The record at this stage does not reflect that all the claims

Hoenig desired to add by amendment lack any arguable basis in law

or fact. See Lewis v. Casey, No. 94-1511, June 24, 1996, 1996 WL

340797 (US); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert.

denied, 476 U.S. 1117 (1986). Further development may show them to

be deficient, either as to personal involvement of Scott or Collins

or otherwise, but the district court never even addressed Hoenig’s

attempt to amend, and Hoenig was never afforded an opportunity to

flesh these allegations out. See Eason v. Thaler, 14 F.3d 8, 9-10

(5th Cir. 1994).

The district court’s dismissal of Hoenig’s suit is vacated as

premature and the cause is remanded for further proceedings not
2Hoenig’s motion in this Court for temporary restraining order

and/or temporary injunction, a motion that was filed in the first

instance in the district court but not acted on by it, is denied by

this Court without prejudice to the district court’s action on the

similar motion before it; the district court on remand should

expressly rule on such motion.

8

inconsistent herewith.2

VACATED and REMANDED