Hawkins v. Trents Flying Svc

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 11, 2002
• Docket: 01-11414
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11414 Summary Calendar

GARRY L. HAWKINS; DOUGLAS R. LOVING,

Plaintiffs-Appellants,

versus

TRENTS FLYING SERVICE,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:01-CV-93 -------------------- July 9, 2002 Before JOLLY, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

Garry L. Hawkins, Texas prisoner #618232, and fellow inmate

Douglas R. Loving, #611599, proceeding pro se, appeal from the

dismissal of their 42 U.S.C. § 1983 complaint against Trents

Flying Service (“Trents”). The complaint arises from the aerial

application of pesticides near a prison unit occupied by the

plaintiffs. The district court dismissed the action under 42

U.S.C. § 1997e(c) because the complaint’s allegations that Trents

acted under the color of state law were insufficient and because

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-11414 -2-

Hawkins and Loving did not satisfy the “physical injury”

requirement of the Prison Litigation Reform Act (PLRA). See 42

U.S.C. § 1997e(e).

“The elements of a § 1983 cause of action are: (1) a

deprivation of rights secured by the constitution, (2) by a

person acting under color of state law.” Evans v. City of

Marlin, Tex., 986 F.2d 104, 107 (5th Cir. 1993). Hawkins and

Loving argue on appeal, pursuant to Adickes v. Kress & Co., 398

U.S. 144 (1970), and West v. Atkins, 487 U.S. 42 (1988), that

Trents acted under color of state law. Because the allegations

of the complaint are to the effect that Trents disregarded the

warnings of prison employees to refrain from spraying near the

prison unit, we conclude that the Adickes test, which applies

when a private party and state officials are “jointly engaged

. . . in the prohibited action,” see 398 U.S. at 152, has no

application.

We likewise conclude that West, which revolved around the

state’s provision of medical care by a private physician retained

under contract, see 487 U.S. at 55-56, does not support the

appellants’ cause. We agree with the district court that the

complaint contains no factual allegations of a relationship

between Trents and the prison. Moreover, we note that, unlike

the physician in West, Trents was not engaged in the provision of

a constitutionally-guaranteed service to inmates. Even if the

factual allegations of the complaint raised the issue, we would No. 01-11414 -3-

decline to extend West to this situation, as to do so would mean

that every individual or business hired under contract by a

correctional facility would be subject to § 1983 liability.

The appellants have also failed to show that the district

court erred in its alternate determination that the complaint

should be dismissed for failure to satisfy the physical injury

requirement of the PLRA. The complaint alleges only that Hawkins

and Loving have experienced difficulty in breathing upon

occasional exposure to hazardous chemicals. Such does not rise

to the level of a constitutional violation. See Richardson v.

Spurlock, 260 F.3d 495, 498 (5th Cir. 2001). Further, although

the complaint speculates that medical care may or will be

necessary in the future, it makes no allegation of a prior

physical injury, as required under the PLRA. See 42 U.S.C.

§ 1997e(e).

Hawkins and Loving devote much of their brief to an argument

that Trents conspired with prison officials and that recovery can

be had for Trents’ violation of Federal Aviation Administration

regulations. The complaint, however, does not seek recovery on

either ground. The arguments newly raised on appeal cannot be

addressed because they do not concern “purely legal issue[s]” and

thus are not susceptible to plain error review. Forbush v. J.C.

Penney Co., 98 F.3d 817, 822 (5th Cir. 1996). Furthermore, this

court “will not allow a party to raise an issue for the first

time on appeal merely because a party believes that he might No. 01-11414 -4-

prevail if given the opportunity to try a case again on a

different theory.” Id. Accordingly, we AFFIRM.

The district court’s dismissal counts as a “strike” under 28

U.S.C. § 1915. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th

Cir. 1996). Hawkins and Loving are hereby cautioned that, should

they accumulate three or more “strikes,” they will be unable to

proceed in forma pauperis in any civil action or appeal filed

while they are incarcerated or detained in any facility unless

they are in imminent danger of serious physical injury. See 28

U.S.C. § 1915(g).

AFFIRMED; SANCTIONS WARNING ISSUED.