IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60553

DAVID C. JOHNSON,

Plaintiff–Appellant,

v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT

OF CORRECTIONS; BARBERS EXAMINATION BOARD AS JOHN DOE

NUMBER 2; STATE HEALTH DEPARTMENT AS JOHN DOE NUMBER 3;

AMERICAN CORRECTION ASSOCIATION AS JOHN DOE NUMBER 4;

SOUTH MISSISSIPPI CORRECTION INSTITUTION AS JOHN DOE

NUMBER 1, same as Mississippi Department of Corrections Commissioner,

Christopher Epps,

Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:07-CV-719

Before KING, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

David Johnson, Mississippi prisoner #02000, brought this civil rights

action alleging that Commissioner Christopher Epps of the Mississippi

Department of Corrections violated his constitutional rights by implementing

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2012

Lyle W. Cayce

Clerk

 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. 10-60553

policies and procedures that Epps knew or should have known would expose

Johnson and other inmates to communicable diseases through unsanitary

barbering procedures. Johnson also sued several other defendants for civil

rights violations, and he asserted state-law claims against all defendants. He

sought injunctive relief as well as actual and punitive damages. The district

court granted summary judgment for the defendants. We reverse in part, affirm

in part, and remand for further proceedings.

I

Johnson’s complaint, filed pro se, asserted a claim under 42 U.S.C. § 1983

for violations of his federal constitutional rights as well as state-law claims of

illegal barbering, negligence, attempted murder, and failure to protect from

contagious diseases. He sought an injunction and damages totaling $15 million:

$5 million in actual damages, $5 million in punitive damages, and $5 million for

future damages. 

The complaint alleged that prison officials forced inmates to work as

unlicensed barbers and that the barbers routinely used clippers and razors

without sanitizing them after each use. Johnson contended that inmates who

had diseases such as HIV and hepatitis were cut or nicked by the clippers and

razors, which contaminated the instruments with blood, and the contaminated

clippers and razors then were used on uninfected inmates like Johnson, who

were accordingly exposed to contaminated blood when they were cut or nicked

by the barbers. In addition to such exposure, Johnson alleged that he contracted

a skin abrasion and barber’s itch. Johnson’s complaint also stated that he was

forced to have his hair cut by the barbers when he entered the prison, under

threat of physical harm.

The original complaint named the Mississippi Department of Corrections

(MDOC) and “John Does” as defendants. Informed by the magistrate judge that

MDOC was not a proper defendant under § 1983, Johnson replaced it with its

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commissioner, Christopher Epps, “in his official and supervisor [sic] capacity”

and incorporated his prior allegations against MDOC as against Epps. The

magistrate judge later ordered Johnson to name the John Does; Johnson

responded by adding the Mississippi Barbers Examination Board, State Health

Department, and the American Correctional Association, all of which he claimed

knew or should have known about the procedures but did nothing to stop them.1

The magistrate judge held a hearing to, among other things, screen the

complaint under 28 U.S.C. § 1915A, which provides for early review of a

prisoner’s complaint against a government or its officials. The magistrate judge

issued an “Omnibus Order” summarizing the proceeding. She concluded that

Johnson failed to state a claim upon which relief could be granted against the

defendants other than Epps and so did not order them served with process. She

also stated that Johnson “has the option of cutting his hair himself” and had

done so in the past year. Johnson filed what he termed a “motion in response”

to the order, clarifying that, while he had cut his own hair, he did so in violation

of prison rules and could face discipline if caught; he alleged that, in fact, he had

no choice but to use the prison barbershop.

Defendant Epps then moved for summary judgment, contending that he

was entitled to qualified immunity, asserting that no facts alleged in the

complaint could overcome that immunity. He also argued that Johnson failed

to demonstrate deliberate indifference or show a serious injury beyond

speculation about disease exposure. Johnson’s response to that motion added

further allegations, including that Epps personally put in place policies that

violated barbering laws and led to Johnson’s injuries. He asserted that “placing

Johnson named the “American Correction Association,” but it appears he intended to 1

name the American Correctional Association, which has in the past used the address he

provided for the court to serve process. The “Barbers Examination Board” appears to be the

State Board of Barber Examiners. See MISS. CODE ANN. § 73-5-1.

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this plaintiff in line with other inmates” with serious diseases and forcing him

to get his hair cut amounted to deliberate indifference. He also alleged that the

prison, since the commencement of the suit, had adopted a new policy requiring

sanitary practices in the barbershop, but he claimed that inmates could testify

that the policy was “on paper only” and was not enforced. With respect to

showing a serious injury, Johnson pointed out that his head was cut, bled, and

became infected and swollen.

Though Epps’s motion was styled a summary judgment motion, the

magistrate judge’s Report and Recommendation analyzed it under the standard

for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The

magistrate judge concluded that Johnson’s claim against Epps (in his official

capacity) was barred by Eleventh Amendment sovereign immunity and that the

complaint did not allege that Epps had been personally involved in Johnson’s

claimed injuries nor had he implemented a policy or custom that led to the

injury. Further, the magistrate judge determined that Johnson’s claims were

based on a theory of negligence on the part of the barbers, not on deliberate

action, and that he had failed to allege an actual injury other than fear. The

magistrate judge also noted that “illegal barbering” is a state-law claim not

cognizable under § 1983. Finally, she concluded that no valid claims had been

made against the defendants other than Epps.

Johnson objected to the Report and Recommendation. He asserted that

Epps had in fact “established the customs and policies” that led to a

constitutional violation and that Epps knew that these policies exposed inmates

to health risks. The district court, noting that it considered the objection, then

adopted the Report and Recommendation as its order, granted summary

judgment to Epps, and dismissed the suit with prejudice.

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II

We liberally construe pleadings made by pro se plaintiffs. In previous 2

decisions and when justice so required, we have held that filings such as a

memorandum in opposition to summary judgment and an opposition to a

magistrate judge’s report and recommendation should have been construed by

the district court as motions to amend the complaint. In many of these cases, 3

we emphasized that no responsive pleading had been filed, meaning the plaintiff

was still entitled to amend as a matter of course, but we have also said that 4

later filings should be treated as motions to amend even in cases in which there

had been a responsive pleading and granting leave to amend was within the

court’s discretion.5

Because Johnson pursues his claim pro se, the district court should have

liberally construed his pleadings. Johnson’s complaint was met with an answer

from Epps, so Johnson was no longer entitled to amend without leave of the

court or Epps’s permission. Nonetheless, our precedents counsel that the 6

district court should have considered Johnson’s “response” to the Omnibus

Order, his memorandum opposing summary judgment, and his objection to the

Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993); see also Haines v. Kerner, 404 2

U.S. 519, 520 (1972) (noting that pro se complaints are held “to less stringent standards than

formal pleadings drafted by lawyers”).

See, e.g., United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (per curiam)

3

(objection to magistrate judge’s report); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.

1972) (motion in opposition to summary judgment filed by counsel).

See, e.g., Barksdale v. King, 699 F.2d 744, 747 (5th Cir. 1983) (per curiam); McGruder 4

v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979).

See, e.g., Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1081 (5th Cir. 1991) 5

(per curiam); Sherman,455 F.2d at 1242. But see United States v. Armstrong, 951 F.2d 626,

630 (5th Cir. 1992) (refusing to consider issues raised in objection to magistrate judge’s

findings because government had filed a responsive pleading and prisoner seeking postconviction relief had not sought leave to amend).

 FED. R. CIV. P. 15(a). 6

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Report and Recommendation as motions to amend his complaint to clarify the

allegations made against Epps. 

We review the district court’s failure to allow such an amendment for

abuse of discretion. While “leave to amend is by no means automatic” and is 7

“entrusted to the sound discretion of the district court,” Rule 15(a) requires that 8

it be granted freely “when justice so requires.” “The policy of the federal rules 9

is to permit liberal amendment to facilitate determination of claims on the

merits and to prevent litigation from becoming a technical exercise in the fine

points of pleading.” With this policy in mind, the district court “may consider 10

a variety of factors” when deciding whether to grant leave to amend, “including

undue delay, bad faith or dilatory motive on the part of the movant, repeated

failures to cure deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment, and futility of

the amendment.” “[U]nless there is a substantial reason to deny leave to 11

amend, the discretion of the district court is not broad enough to permit

denial.”12

Prior to the filings at issue here, Johnson had already twice amended his

complaint, but those amendments were made pursuant to the magistrate judge’s

orders that Johnson name appropriate defendants; the magistrate judge did not

inform him of any other deficiencies in need of modification, and Johnson did not

Riascos, 76 F.3d at 94. 7

Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quoting 8

Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998)).

 FED. R. CIV. P. 15(a)(2). 9

Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). 

10

Jones, 427 F.3d at 994 (citing Dussouy, 600 F.2d at 598). 11

Dussouy, 660 F.2d at 598.

12

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attempt to address any. The later filings do not appear to have been made in

bad faith or with undue delay: Johnson corrected the magistrate judge’s

misunderstanding about his ability to cut his own hair in a response

approximately two weeks after the Omnibus Order, before Epps filed for

summary judgment, and the initial error seemed to be due to a lack of clarity in

Johnson’s testimony rather than any ill intent. Johnson’s specific allegations

about Epps’s role, made in opposition to the summary judgment motion, likewise

do not evince a desire to hide the allegations from Epps or delay adjudication but

rather an attempt by an incarcerated pro se plaintiff to comply with pleading

requirements of which he may not have been fully aware until his deficiencies

were brought to his attention. Because very little discovery seems to have taken

place and the motion for summary judgment focused on the complaint rather

than any evidence, it is doubtful Epps would suffer any prejudice from allowing

amendment, as he would retain every opportunity to defend against the

allegations. Finally, it does not appear as though amendment would have been 13

futile; as explained more thoroughly below, adding these allegations to the

complaint will enable Johnson to state a claim for relief under the Eighth

Amendment.

Consequently, the district court should have treated these filings as

motions to amend and should have granted them. We will consider the merits

of Johnson’s complaint as if it had been so amended.14

Compare Cranberg v. Consumers Union of U.S., Inc., 756 F.2d 382, 392 (5th Cir. 13

1985) (approving denial of amendment filed eighteen months after complaint, after all

evidence had been presented) with Sherman v. Hallbauer, 455 F.2d 1236, 1239, 1242 (5th Cir.

1972) (construing a response to a motion for summary judgment as a motion to amend that

should have been granted, despite a “sudden[] shift[]” in theory of the case made “late in the

day”).

See Barksdale v. King, 699 F.2d 744, 747 (5th Cir. 1983) (per curiam) (construing 14

opposition to magistrate’s report as amendment to the complaint, then assessing whether

complaint sufficiently stated a claim).

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III

The magistrate judge’s Report and Recommendation, adopted by the

district court, concluded Johnson’s complaint failed to state a claim under 28

U.S.C. § 1915(e)(2)(B)(ii). We review a dismissal under this provision de novo,

applying the same standard used for Federal Rule of Civil Procedure 12(b)(6).15

Under that rule, “a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Facial 16

plausibility means that the plaintiff has pleaded “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” We accept all well-pleaded facts as true, but legal 17

conclusions are not entitled to that assumption.18

Johnson asserted claims against Epps in both his official and supervisory

capacities, seeking injunctive relief and damages. A claim for damages against

a state official in his official capacity “is no different from a suit against the

State itself,” so the official is not a “person” subject to a damages suit under

§ 1983. Consequently, the part of the claim seeking damages against Epps in 19

his official capacity was properly dismissed. A state official may, however, be

sued for prospective injunctive relief. With respect to the supervisory claims, 20

Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (per curiam). 15

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 16

U.S. 544, 570 (2007)).

Id. 17

Id. 18

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Quern v. Jordan,

19

440 U.S. 332, 340-41 (1979) (holding that § 1983 does not abrogate the states’ Eleventh

Amendment immunity).

Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004); Edelman v. Jordan, 415 U.S. 20

651, 677 (1974); see also Will, 491 U.S. at 71 n.10 (“[O]fficial-capacity actions for prospective

relief are not treated as actions against the State.” (internal quotation marks omitted)).

8

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an official may not be held personally liable on a theory of vicarious liability, but

“can be held liable when the ‘enforcement of a policy or practice results in a

deprivation of federally protected rights.’”21

To establish a violation of the Eighth Amendment, a prisoner must show

that a prison official was deliberately indifferent to a substantial risk of serious

harm to the prisoner. A prison official acts with deliberate indifference only if 22

he “knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.”23

A prisoner need not show “serious current symptoms” or an actual injury to state

a valid Eighth Amendment claim; it is enough that the prison conditions “pose 24

an unreasonable risk of serious damage to his future health.” In a prior 25

unpublished opinion, this court concluded that allegations that inmates were

required to share communal razors without disinfecting them between uses,

subjecting inmates to the risk of exposure to HIV and hepatitis, was sufficient

to avoid dismissal.26

With respect to deliberate indifference, Johnson’s complaint alleged that

Epps “set in motion a ser[ies] of events” that led to Johnson’s injuries and “put

in place policies in an unlawful manner” that disregarded barbering laws and led

Bustos v. Martini Club Inc., 599 F.3d 458, 468 (5th Cir. 2010) (quoting Alton v. Texas 21

A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999)).

Farmer v. Brennan, 511 U.S. 825, 828 (1994). 22

Id. at 837.

23

Helling v. McKinney, 509 U.S. 25, 33 (1993). 24

Id. at 35 (holding that plaintiff stated a claim based on exposure to environmental 25

tobacco smoke from other inmates’ cigarettes).

Gomez v. Warner, No. 94-60530, 1994 WL 612371 at *2-*3 (5th Cir. 1994) (per 26

curiam) (citing DeGidio v. Pung, 920 F.2d 525, 533 (8th Cir. 1990)).

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to Johnson’s exposure to diseases. Specifically, he claimed that Epps forced 27

inmates to act as barbers (in violation of state law) and required the sharing of

barber clippers covered in infected blood from other inmates. He later alleged,

in his response to the summary judgment motion, which we construe as an

amendment to his complaint, that “numerous” inmates had contracted diseases. 

He suggested that Epps was aware of this and was avoiding providing discovery

for that reason. Further, he claimed that a new policy had been promulgated

(possibly in response to this lawsuit) that mandated more sanitary procedures,

which could indicate Epps’s subjective awareness of the problem, but he asserted

that the policy was not being enforced. Finally, Johnson made clear on several

occasions that, despite some confusion on the issue, he did not have the option

to cut his own hair rather than utilize the services of the prison barbershop. 

Johnson’s filings are sufficient to state a claim. Though he alleges only

limited facts, these facts permit a reasonable inference that Epps has acted with

deliberate indifference by implementing a policy under which inmates use

unsterilized instruments on other inmates. Johnson alleges that inmates with

communicable diseases have in fact infected other inmates. Such a policy

“pose[s] an unreasonable risk of serious damage to [Johnson’s] future health.” 

Taking Johnson’s allegations as true, Epps required barbers to use and reuse

clippers and razors contaminated with blood. The district court erred when it

dismissed, for failure to state a claim, Johnson’s claims against Epps in his

official capacity (for injunctive relief only) and in his supervisory capacity.

In the complaint, Johnson refers to the acts of “defendant(s),” referring to MDOC and 27

the then-unnamed John Does. To comply with an order of the magistrate judge, Johnson

amended his complaint to add Epps and incorporated his former allegations by adding, “all

that’s stated about M.D.O.C. is stated about Christopher Epps.” Liberally construing his

complaint, as we must, we read any allegations originally made against “defendant(s)” as

being made against Epps.

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IV

In addition to assessing whether Johnson stated a claim, the Report and

Recommendation also addressed Epps’s assertion of qualified immunity. “This

court reviews de novo the district court’s resolution of legal issues on a motion

for summary judgment on the basis of qualified immunity.” Any immunity 28

would apply only to the claims for damages, as qualified immunity does not

extend to suits for injunctive relief under § 1983.29

In determining whether qualified immunity has been negated at the

pleading stage, this court applies a two-step analysis. Viewing the evidence in

the light most favorable to the plaintiff, the court considers whether the

defendant’s conduct violated the plaintiff’s constitutional rights. If so, the court 30

considers whether the defendant’s conduct was “objectively unreasonable in light

of clearly established law” at the time of the action in question. The court may 31

make those inquiries in either order.32

The district court held that Johnson had not alleged a constitutional

violation, so it proceeded no further in its qualified immunity analysis. Because

we conclude that Johnson has alleged a constitutional violation, however, we

must address the second step of the qualified immunity analysis.

A “clearly established” constitutional right must be specified at the

appropriate level of generality in order to hold an official personally liable for

violating it; “[t]he contours of the right must be sufficiently clear that a

Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007).

28

Chrissy F. by Medley v. Miss. Dep’t of Pub. Welfare, 925 F.2d 844, 849 (5th Cir. 1991).

29

Freeman, 483 F.3d at 410.

30

Id. at 411.

31

Pearson v. Callahan, 555 U.S. 223, 236 (2009). 32

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reasonable official would understand that what he is doing violates that right.”33

This does not require that the exact same action must previously have been held

unconstitutional, but only that, in light of pre-existing law, the unlawfulness

must have been apparent.34

In Helling v. McKinney, the Supreme Court held that a prison official’s

deliberate indifference to the potential future health risks of exposure to

environmental tobacco smoke could constitute a claim under the Eighth

Amendment. The Court analogized the case before it with hypothetical 35

situations in which prison officials were deliberately indifferent to other types

of potential harms, such as “exposure of inmates to a serious, communicable

disease,” and expressed its view that such indifference would also be actionable

even if “the complaining inmate shows no serious current symptoms.”36

Here, Johnson has alleged that the policies and practices that Epps

implemented for the prison barbershop exposed Johnson to such serious,

communicable diseases and that Epps was aware of this risk and did nothing to

eliminate that risk. In light of Helling, a reasonable official would understand

that operating the barbershop in this fashion would violate Johnson’s rights. As

a result, Epps is not entitled to qualified immunity.

V

In addition to Epps, Johnson asserted Eighth Amendment claims against

the State Board of Barber Examiners, the State Health Department, and the

American Correctional Association, replacing his original John Doe defendants. 

In screening the complaint, the magistrate judge determined that Johnson failed

Anderson v. Creighton, 483 U.S. 635, 640 (1987). 33

Id. 34

See Helling v. McKinney, 509 U.S. 25, 35 (1993). 35

Id. at 33. 36

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to state a claim against these entities and did not order process to be served

upon them.

To the extent that the State Board of Barber Examiners and the State

Health Department are state entities that can be sued for injunctive relief under

§ 1983, Johnson’s assertions regarding their conduct do not allege that they 37

were aware of facts from which the inference could be drawn that Johnson faced

a substantial risk of serious harm and that they also drew that inference. At 38

most, he has alleged that they failed in their state-law oversight responsibilities,

which does not amount to a federal constitutional violation.

With respect to the American Correctional Association, Johnson appears

to allege that the organization violated his constitutional rights by accrediting

the prison despite the barbershop conditions and issues with the law library and

by ignoring complaints made to inspectors by prisoners. Johnson alleges that

all defendants “acted ‘under color of state law,’” but the Association is not a state

agency. “To act ‘under color’ of law does not require that the accused be an

officer of the State”; it would be enough to be a willful participant alongside a

39

state agent or to be an entity that performs a traditionally governmental

function. But Johnson has not explained how the Association’s approval of 40

prison conditions was an act under color of state law that deprived him of any

rights. We affirm the district court’s dismissal of claims against these

defendants.

See Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). 37

See Farmer v. Brennan, 511 U.S. 825, 837 (1994). 38

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). 39

Id.; Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) 40

(allowing suit against private prison-management company and its employees).

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VI

Johnson also brought claims against all defendants for negligence. Under

the Mississippi Tort Claims Act, government entities and their employees acting

within the scope of their employment are not liable for claims from, among

others, “an inmate of any detention center, jail, workhouse, penal farm,

penitentiary or other such institution.” State prisons and their employees are 41

covered by this statute, as are the State Board of Barber Examiners and 42

Department of Health. Accordingly, Johnson’s negligence action cannot go

forward against them. The American Correctional Association is not covered by

the statute, but the negligence claim in Johnson’s original complaint pertains

only to the prison barbers. He specifically implicates the Association only in his

constitutional claims, never providing any facts supporting an inference of

negligence. We affirm the district court’s dismissal of the negligence claims.

VII

Johnson also alleges claims for illegal barbering and attempted murder, 43

both criminal offenses with no express provision for a civil cause of action. “The

general rule for the existence of a private right of action under a statute is that

the party claiming the right of action must establish a legislative intent, express

or implied, to impose liability for violations of that statute.” Johnson’s 44

complaint describes the policies behind the barbering statutes, but it does not

argue any legislative intent to create private enforcement for either of these

offenses. Consequently, we affirm the decision below to dismiss these claims.

 MISS. CODE ANN. § 11-46-9(1)(m).

41

See Clay v. Epps, 19 So. 3d 743, 746 (Miss. Ct. App. 2008); Whitt v. Gordon, 872 42

So. 2d 71, 74 (Miss. Ct. App. 2004) (“[The statute,] without exception, prohibits all claims from

claimants who are inmates at the time the claim arises.”).

 MISS. CODE ANN. §§ 73-5-9, 73-5-43 (making illegal barbering a misdemeanor). 43

Doe v. State ex rel. Miss. Dep’t of Corrections, 859 So. 2d 350, 355 (Miss. 2003). 44

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VIII

Finally, we address Johnson’s claim of inadequate access to the prison law

library. Inmates have a right to “meaningful access to the courts,” which may,

but need not, include access to a law library. To have standing to sue, Johnson 45

must demonstrate an actual injury stemming from the purported violation.46

The district court correctly concluded that Johnson had not alleged any

actionable prejudice or harm that resulted from the prison’s policies, and we

affirm its decision on this issue.

* * *

For the foregoing reasons, we REVERSE the judgment of the district court

in part, AFFIRM in part, and REMAND for further proceedings.

Lewis v. Casey, 518 U.S. 343, 351 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 830 45

(1977)).

Id. at 351. 46

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