Alex v. Stalder, et al

* 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this opinion should not be published and is not precedent except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
F I L E D
April 27, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30982
Summary Calendar
RICKY JOSEPH ALEX,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; VENETIA MICHAEL; JERRY GOODWIN; RAY HANSON;
JAMIE FUSSELL; SERGEANT RIOS; TONY TOBIN; RICKY ANDREWS; CURT
WAINWRIGHT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CV-30
--------------------
Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Ricky Joseph Alex, Louisiana prisoner # 98130, appeals from
the dismissal of his 42 U.S.C. § 1983 action as frivolous. He
contends that the conditions of his confinement violated the
Eighth Amendment; that the conditions of his confinement violated
the Due Process Clause; and that the dismissal of his action
before discovery and service of the defendants violated the Due
Process Clause.

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No. 05-30982
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Alex’s appellate allegations regarding the taking of his
mattress from his cell during the daytime do not give rise to any
Eighth Amendment violation. See Novak v. Beto, 453 F.2d 661,
665-66 (5th Cir. 1971). Alex does not allege on appeal that he
was deprived of his mattress during sleeping hours; he thus has
abandoned any such claim. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Moreover, the
serving of food loaf, without more, does not give rise to an
Eighth Amendment violation. See Green v. Ferrell, 801 F.2d 765,
770 (5th Cir. 1986).
Alex’s allegations regarding the cold temperatures in his
cell, however, do give rise to a nonfrivolous Eighth Amendment
contention. He alleges that he was held in very cold conditions,
for an extended period in November and December, wearing nothing
but a paper gown during the daytime, and that he was ordered to
remain on the cold concrete whenever he attempted to sleep on the
warmer, metal bunk. Alex has a right to protection from extreme
cold. See Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir. 1999);
Beck v. Lynaugh, 842 F.2d 759, 760 (5th Cir. 1988). Alex may not
recover compensatory damages absent a showing of a physical
injury, 42 U.S.C. § 1997e(e); Harper v. Showers, 174 F.3d 716,
719 (5th Cir. 1999). However, he may be entitled to injunctive
relief, see Harper, 174 F.3d at 719, and nominal or punitive
damages. See Williams v. Kaufman County, 352 F.3d 994, 1014-15
(5th Cir. 2003). The dismissal of Alex’s claim regarding the

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No. 05-30982
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cold temperatures in his cell was erroneous. See Harper, 174
F.3d at 718 & n.3.
Finally, the district court did not err by dismissing Alex’s
action before discovery or service of the defendants. See Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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