Summary Calendar JERRY MARCUS v. CHRISTOPHER EPPS, Commissioner, in his individual capacity

* 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should not be published and is not precedent except under the limited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. 07-60568
Summary Calendar
JERRY MARCUS
Plaintiff-Appellant
v.
CHRISTOPHER EPPS, Commissioner, in his individual capacity; LATITIA
ROACH, Director of Classification, in her individual capacity; THERESA
MCCAIN, Case Manager, in her individual capacity; BARBARA BAILEY,
Supervisor of Records Department, in her individual capacity
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:05-CV-230
Before JONES, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jerry Marcus, Mississippi prisoner # 44262, filed a 42 U.S.C. § 1983
complaint against four prison officials asserting various claims arising out of a
cell reassignment. The district court dismissed the complaint for failure to state
a claim. For the reasons that follow, we affirm in part, vacate in part, and
remand for further proceedings.
United States Court of Appeals
Fifth Circuit
F I L E D
May 14, 2008
Charles R. Fulbruge III
Clerk

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No. 07-60568
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Because Marcus is a prisoner, his § 1983 complaint is governed by the
provisions of 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Under either statute
we employ the same de novo standard of review applicable to dismissals made
pursuant to FED. R. CIV. P. 12(b)(6). Under the Rule 12(b)(6) standard, a
plaintiff fails to state a claim upon which relief can be granted when the
complaint does not contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
“Factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Id. at 1965 (quotation marks, citations, and
footnote omitted).
Marcus’s allegations concerning the cell reassignment and the inability to
obtain personal hygiene products and long underwear are insufficient to state
a due process or Eighth Amendment claim. See Sandin v. Conner, 515 U.S. 472,
484 (1995) (due process); Farmer v. Brennan, 511 U.S. 825, 834 (1994). (Eighth
Amendment). In addition, although Marcus asserts claims of retaliation and
discrimination in his brief, he did not raise those claims in the district court;
thus, we decline to address them. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999).
However, Marcus’s claims concerning exposure to environmental tobacco
smoke may give rise to an Eighth Amendment violation. The Supreme Court
has recognized the potential existence of such a claim and has set out the
elements that the defendant must prove. Helling v. McKinney, 509 U.S. 25, 28
(1993). Marcus must allege sufficient facts to show that prison officials were
deliberately indifferent to his serious medical needs by exposing him to
environmental tobacco smoke which posed an unreasonable risk to his health.
See Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Marcus alleged
that he has been exposed to environmental tobacco smoke, that it has caused
him injury in the form of elevated blood pressure and damage to blood vessels,

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No. 07-60568
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and that the defendants were aware of and ignored this risk to his health.
Although inartful, his complaint does not fail to allege sufficient facts to state a
facially plausible claim for relief at this juncture, although the ultimate viability
of Marcus’s claim is dubious. See Oliver v. Deen, 77 F.3d 156 (7th Cir. 1996).
Accordingly, we VACATE the portion of the judgment that dismissed
Marcus’s Eighth Amendment claims based on exposure to environmental tobacco
smoke, and we REMAND for further proceedings consistent with Helling. We
AFFIRM the judgment of the district court in all other respects.

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