* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-11334

Summary Calendar

 

DONALD TODD,

Plaintiff-Appellant,

versus

KATHLEEN HAWK, Etc; ET AL.,

Defendants,

GEORGE E KILLINGER, Warden Federal Correctional Institution

Fort Worth; HECTOR SOLIS, Unite Manager of Fort Worth Unit,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:98-CV-556-Y

--------------------

June 12, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Donald Todd, federal prisoner # 90940-012, filed a pro se

civil rights complaint pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

alleging exposure to environmental tobacco smoke (“ETS”) and

asbestos at Federal Medical Center-Fort Worth. Todd’s claims

against Hawk and the other defendants were dismissed pursuant to
No. 00-11334

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28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), leaving only his

claims against Killinger and Solis (“appellees”). Appellees

filed a motion to dismiss, or in the alternative for summary

judgment; the district court dismissed any claims against

appellees in their official capacities and granted summary

judgment on claims made against them in their individual

capacities.

Appellees first argue that Todd’s appeal should be dismissed

because his brief was untimely. The court will allow Todd’s

brief and consider the merits of his appeal. See Fed. R. App. P.

26(b).

Todd argues that the district court erred by not allowing 

discovery before granting summary judgment. This court reviews

“a district court’s discovery decisions for abuse of discretion

and will affirm such decisions unless they are arbitrary or

clearly unreasonable.” Moore v. Willis Indep. Sch. Dist., 233

F.3d 871, 876 (5th Cir. 2000). Because Todd never requested

discovery or a continuance pursuant to Fed. R. Civ. P. 56(f) to

seek additional discovery, the district court did not abuse its

discretion by ruling on the summary judgment motion.

Todd also argues that the district court should have

construed his response to the summary judgment motion as a motion

to amend his complaint. This court reviews the denial of leave

to amend a complaint for abuse of discretion. See Halbert v.

City of Sherman, Texas, 33 F.3d 526, 529 (5th Cir. 1994). 

Although Todd requested leave to amend if the district court

found his complaint or service improper, he did not indicate that
No. 00-11334

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it should be construed as an actual amendment, and the response

did not name additional defendants, raise new claims, or

otherwise specify the substance of any proposed amendment. 

Therefore, the district court did not abuse its discretion. 

Todd also argues that the district court should have

provided at “leas[t] 10 days notice before granting Summary

Judgment sua sponte.” However, the district court did not grant

summary judgment sua sponte; appellees had clearly moved for

summary judgment under Fed. R. Civ. P. 56. In addition,

“particularized additional notice of the potential consequences

of a summary judgment motion and the right to submit opposing

affidavits need not be afforded a pro se litigant. The notice

afforded by the Rules of Civil Procedure and the local rules [is]

... sufficient.” Martin v. Harrison County Jail, 975 F.2d 192,

193 (5th Cir. 1992). Appellees served their motion by mail

October 4, 1999, and Todd filed a response October 29, 1999. The

district court issued granted summary judgment September 20,

2000, more than 20 days later. Therefore, Todd’s assertion that

the district court should have provided him 10 days notice before

ruling on the motion is frivolous. 

Todd also argues that the district court should have

notified him which of appellees’ alternative motions (to dismiss

or for summary judgment) it would consider so he could reply

properly and submit additional evidence. Todd’s assertion is

factually frivolous. Appellees’ motion was specifically labeled

in the alternative as a motion for summary judgment, it suggested

that because matters outside the pleadings were to be considered
No. 00-11334

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it should be construed as a motion for summary judgment, and Todd

responded by arguing genuine issues of material fact existed. 

Thus, Todd was provided adequate notice regarding the alternative

motions. 

Liberally construed, see Haines v. Kerner, 404 U.S. 519, 520

(1972), Todd’s brief argues that his own allegations and the

various declarations he submitted presented genuine issues of

material fact: whether he was exposed to levels of asbestos and

ETS posing an unreasonable risk of serious harm, and whether the

risk of harm violates standards of decency. “This court reviews

the grant of a summary judgment motion de novo, using the same

criteria used by the district court.” Fraire v. City of

Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). Summary judgment

is proper if the pleadings, discovery, and any affidavits filed

in support of the motion, show that there is no genuine issue as

to any material fact and that the moving party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(c). The

moving party bears of burden of showing the district court “that

there is an absence of evidence to support the nonmoving party’s

case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If

the moving party meets the initial burden of showing that there

is no genuine issue, the burden shifts to the nonmovant to set

forth specific facts showing the existence of a genuine issue for

trial. See Rule 56(e). 

Todd named appellees in both their official and individual

capacities. Official capacity suits against federal employees

are generally treated as suits against the United States. 
No. 00-11334

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See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). However,

suits against the United States brought under the civil rights

statutes are barred by sovereign immunity. See Affiliated Prof’l

Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.

1999). Bivens actions may be brought against defendants acting

in their individual capacities only. See id. To the extent Todd

sued the appellees in their official capacity, his claim is

barred as a matter of law.

In Helling v. McKinney, 509 U.S. 25 (1993), the Supreme

Court held that the Eighth Amendment protects prisoners from an

official’s deliberate indifference to conditions posing an

unreasonable risk of serious damage to the prisoner’s future

health. Id. at 33-35. If the claim is based on exposure to ETS,

the prisoner “must show that he himself is being exposed to

unreasonably high levels of ETS,” “that the risk of which he

complains is not one that today’s society chooses to tolerate,”

and that officials showed deliberate indifference to the risk. 

Id. at 35-36.

A review of the record demonstrates Todd did not allege

anything more than exposure to the “removal of asbestos.” Todd

also did not present any response to declarations submitted by

appellees that asbestos removal used approved procedures and that

monitoring confirmed that airborne asbestos levels were below EPA

requirements. Because there was no genuine issue of material

fact regarding exposure to asbestos, summary judgment was proper

on this claim.
No. 00-11334

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The gravamen of Todd’s ETS claim is that the appellees’

failure to adequately enforce no-smoking policies has resulted in

his exposure to ETS. We pretermit the other elements of a claim

under Helling to address the deliberate indifference element. A

prison official acts with deliberate indifference “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, 511 U.S. 825, 847 (1994). The

Supreme Court has suggested that the adoption of a smoking policy

would “bear heavily on the inquiry into deliberate indifference.” 

Helling, 509 U.S. at 36-37.

 The summary judgment evidence reflected that inmates caught

smoking in non-smoking areas were subject to disciplinary action. 

Looking at the evidence in the light most favorable to Todd, the

nonmovant, there does not appear to be a genuine issue of

material fact whether the defendants acted with deliberate

indifference. Todd did not present any evidence evincing wanton

actions on the part of the defendants demonstrating deliberate

indifference. The evidence reflected that the defendants did not

disregard the risk but took “reasonable measures to abate it.” 

Farmer, 511 U.S. 825 at 847. 

The judgment of the district court is AFFIRMED.