### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41312 Summary Calendar

THOLONAUS D. POMIER, Plaintiff-Appellant

v. M.E. GEAN LEONARD, JR.; R.C. DE LA CRUZ, JR.; KURT SISTRUNK, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:10-CV-121

Before REAVLEY, JOLLY, and OWEN, Circuit Judges. PER CURIAM: * Tholonaus D. P omier, Texas prisoner # 1554567, has appealed the district court’s judgment dismissing his civil r i gh t s c omplaint p u rsuant to 28 U.S.C. § 1915A(b)(1) as frivolous and for failure to state a claim upon which relief m ay be granted. We review the dismissal o f a complaint under § 1915A(b)(1) de novo, accepting th e f

a c ts a lleged in the complaint a s true and viewing them in the light most favorable to the plaintiff. Green v . Atkinson , 623 F.3d 278, 279 (5th Cir. 2010). Pomier complains of the conditions of his confinement as a pretrial U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 25, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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detainee at the Galveston County Jail during and after Hurricane I k e . He complains that the d efendant sheriff failed to evacuate him, that he suffered psychological damages b ecause o f conditions in the jail during and after the storm, and that his right o f access to the courts w as denied because he did not have access to the jail law library. 1 “No Federal c i v il action may be brought by a prisoner confined in a jail, prison, or other correctional f a c i l i t y , for mental or emotional injury suffered while i n custody without a prior s howing of physical injury.” 42 U.S.C. § 1997e(e). Although he w as a pretrial detainee, Pomier was a “prisoner” under the s tatutory d efinition of that t erm. See § 1 997e(h). Pomier contends that his psychological-injury claim is not barred by § 1997e(e) because he did sustain a physical injury, that is, “ discoloration of his right big toe a s a resul t of

. . . foot fungus.” Pomier’s injury was de minimis and was insufficient to overcome the statutory hurdle of § 1997e(e). See Alexander v. Tippah Cnty., Miss. , 351 F.3d 626, 6 31 (5th Cir. 2003 )

. S e ction 1997e(e) does not, however, bar claims for

n o m i n a l and p unitive damages. Hutchins v. McDaniels , 512 F .3d 193, 196

- 9 8 (5th Cir. 2007). Pomier contends that his conditions

- of-confinement claim should have been analyzed u nder Bell v. Wolfish , 441 U.S. 520 ( 1979), and not under th e standard in Farmer v. Brennan , 511 U.S. 825, 832 (1994). “ Pretrial de t a i nees and convicted prisoners

. . . look to different constitutional provisions for their respective rights to basic needs such as medical care and safety.” Hare v. City of Corinth, Miss. , 74 F.3d 633, 639 (5th Cir. 1996) (en banc). Convicted prisoners

are p rotected by the Eighth Amendment’s prohibition against cruel and unusual punishment. Id. (citing Estelle v. Gamble , 429 U.S. 97, 104 (1976)). Under the

1 P o m i e r h as w aived his claim agains t D is trict Attorney Kurt Sis trunk by f ailing to d is cus s it in his brief on ap peal. See U ni ted S t a tes v . Tha m es , 214 F. 3d 608, 612 n. 3 ( 5th Cir. 2000)

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due proce s s g uarantees of the Fourteenth Amendment, states cannot punish pretrial detainees. I

d. (citing Bell , 441 U.S. at 535, 538). We held i n H

a re that episodic acts and omissions, however, s u ch as the sheriff’s decision not to e vacuate the jail, are evaluated under t h e standard in Farmer

. See id. at 643. Under Farmer , “a prison official may b e held liable

. . . f o r d e nying humane conditions of confinement only if he knows that inmates face

a substantial risk of s erious harm and disregards that risk by f a i l i n g to take reasonable measures to abate it.” 511 U.S. at 8 47. “De l ib erate indifference cannot be inferred merely from a negligent or e ven a grossly negligent response to a substantial risk of h arm.” Thompson v. Upshur County, Tex. , 245 F .3d 447, 459 (5th Cir. 2001). Pomier cannot show that the sheriff knew that he faced a substantial risk of serious harm because of the approaching hurricane and t h a t t h e sheriff disregarded that risk by deciding unreasonably not to e vacuate t h e jail. See Farmer , 511 U.S. at 847. Evacuation i tself entails significant risks for e vacuees and for institutional security, a nd the s her i ff c ould well have d ecided that Pomier would be safest sheltering in place in a reinfo r ced structure such as a jail. Of course, as it turned out, Pomier did survive the storm. To the extent that Pomier com p l a i n s about short-term c onditions that existed in the jail following the storm, he still may not prevail. Pomier alleged, inter alia , that there was no power at the jail for five days, that he c o uld not use
a toilet to d e fecate for three d ays, that he could n ot shower for seven days and then had to take cold showers for seven m ore days, that toilets were filled with urine a nd feces for thirteen days, and that there was no clean water available for three days. Because Pomier cannot show that the defendants implemented

a rule or restriction designed to bring about these conditions, Bell is applicable i f Pomier shows that the defendants’ “acts or omissions were sufficientl y extended or pervasive, or otherwise typical of extended or pervasive misconduct by other officials, to prove an i n t e n d e d condition or practice to which the Bell
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test c a n be meaningfully applied.” Hare , 74 F.3d at 645. Pomier cannot make this showing. We agree with the district court that Pomier’s allegations amount to temporary conditions that arose due to the virtually u nprecedented effects of

a major hurricane and the d efendants’ decision not to evacuate the jail. As noted by the district court, Hurricane Ike was the largest storm to hit Galveston since 1900. Pomier h as not alleged pervasive o r extended misconduct in the face of this natural disast e r , nor h as he shown any actionable injuries from the resulting alleged conditions. We therefore p erceive n o error in the district court’s dismissal of Pomier’s claims. Pomier also contends tha t h e d i d n ot h ave a ccess to the jail law library following the h urricane a nd that he was unable to p repare for his criminal trial, at which he was represent i n g himself. As a result, he c ontends, he was sentenced to an unlawful 20-year term of imprisonment, w h i ch w as overturned

on appeal. “An inmate alleging the d enial o f his right of a ccess to the courts must demonstrate a relevant, a ctual i njury stemming from the defendant’s unconstitutional conduct.” Brewster v . Dretke , 587 F.3d 7 64, 769 (5th Cir. 2009). In vacating P omier’s 20-year sentence, the state appellate court acted sua sponte. See Pomier v. State , 326 S.W.3d 373, 3 84 (Tex. App. 2010). If Pomier’s appellate attorney could not identify the trial court’s error, there is no reason to believe that P omier would have discovered the error prior to trial if he h ad more access to a law library. See Brewster , 587 F.3d at 769. The district court’s judgment is AFFIRMED.

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