IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30746

Summary Calendar

HAROLD JOE BLACK,

Plaintiff-Appellant

v.

CONCORDIA PARISH DETENTION CENTER; RANDELL MAXWELL; J. 

LEVY DABADIE CORRECTIONAL CENTER; WINN CORRECTIONAL 

CENTER; DAVID WADE CORRECTIONAL CENTER; TERRY TERRELLE; 

JERRY GOODWIN; PEGGY E. LANDRY,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:11-CV-1714

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Harold Joe Black, formerly Louisiana prisoner #111111 appeals the 

dismissal of his civil rights complaint, arguing that the district court erred in 

concluding that he had not stated a claim upon which relief could be granted 

against the defendants. He also contends that the district court and the 

 

* 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

FILED

July 20, 2015

Lyle W. Cayce

Clerk

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No. 14-30746

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magistrate judge acted improperly by conducting a second screening of his 

case. This latter contention is meritless, as the district court is obligated to 

dismiss, at any time during the proceeding, an in forma pauperis (IFP) prisoner 

complaint that fails to state a claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii).

The district court could properly dismiss Black’s claims only if his factual 

allegations “taken as true, do not state a claim that is plausible on its face.” 

Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014) (internal quotation 

marks and citation omitted). We review the dismissal of Black’s complaint “de 

novo, using the same standard applicable to dismissals under Federal Rule of 

Civil Procedure 12(b)(6).” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 

2013).

A prison official may be held liable under the Eighth Amendment for 

denying a prisoner humane conditions of confinement only if he acts (or fails 

to act) with “deliberate indifference to a substantial risk of serious harm to an 

inmate.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). 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.” Id. at 847.

The Supreme Court set forth a two-prong test to determine whether 

exposure to environmental tobacco smoke (ETS) entitles an inmate to relief 

because it violates his Eighth Amendment right to be free from cruel and 

unusual punishment. First, a prisoner must prove objectively that he is “being 

exposed to unreasonably high levels of ETS.” Helling v. McKinney, 509 U.S. 

25, 35 (1993). Second, the prisoner must show subjectively that prison 

authorities demonstrated a “deliberate indifference” to his plight. Id. at 36.

Landry’s denying Black release to parole in 2004 does not plausibly state 

a claim of Landry’s deliberate indifference to Black’s ETS exposure. See 

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Coleman, 745 F.3d at 763. Black’s allegations that Terrell and Maxwell 

exposed him to ETS in the past also fail to state plausible claims upon which 

relief may be granted. See Farmer, 511 U.S. at 828; Watts v. Graves, 720 F.2d 

1416, 1422-23 (5th Cir. 1983). Black has not briefed and has therefore waived 

any argument regarding the prison facilities he named as defendants. See 

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). However, with respect 

to Goodwin and Leblanc, the record reflects that Black filed administrative 

complaints and wrote a letter to Goodwin alleging that the prison’s smoking 

policy was not enforced and that his exposure to ETS aggravated his prostate 

cancer. When he was unsatisfied with the denial of his administrative 

complaint, Black appealed, and his appeal was denied by Leblanc or Leblanc’s

designee.

Taking Black’s allegations as true, he has stated a plausible claim that 

Goodwin and Leblanc knew he faced a substantial risk of serious harm and

disregarded that risk by failing to take reasonable measures to abate it. See 

Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Black should 

therefore be provided an opportunity “to develop his case at least to the point 

where any merit it contains is brought to light.” Howard v. King, 707 F.2d 215, 

220 (5th Cir. 1983). “It may be possible for the defendants by motion for 

summary judgment to set forth facts beyond genuine dispute that would prove 

the nonexistence of a valid claim on the merits.” Id. at 221.

The judgment of the district court is affirmed with respect to the 

dismissal of Black’s claims against Landry, Terrell, Maxwell, and the prison 

facilities. However, because Black has pleaded plausible claims for relief 

against Goodwin and Leblanc, the dismissal of Black’s claims against them is

vacated and remanded for further proceedings. See Green v. Atkinson, 623 

F.3d 278, 281 (5th Cir. 2010).

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AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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