* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, t his panel has determined unanimously to honor the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

UNITED STATES COURT OF APPEALS Filed 12/10/96 TENTH CIRCUIT

RONALD DEL RAINE, Plaintiff - Appellant, v. MIKE W. NELSON, Foreman, UNICOR, U.S. Penitentiary Leavenworth, Defendant - Appellee. No. 96-3129 (D.C. No. 95-3124-RDR) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and HENRY , Circuit Judges. **
Plaintiff - Appellant Ronald Del Raine (“Del Raine” ) is serving an aggregate prison term of 209 years in the United St ates Penitentiary, Leavenworth, Kansas (“USP”). The facts of this ca se arise from Del Raine’s employment in the Print Factory at USP, where he wo rks under the defendant,1 We grant Del Raine’s request to proceed in forma pauperis on appeal,

notwithstanding the district court’s denial of this request. Because Del Raine filed his notice of appeal on August 11, 1996, prio r to the enactment of the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat . 1321 (Apr. 26, 1996), the Act’s amendments to 28 U.S.C. § 1915 do not apply h ere. White v. Gregory , 87 F.3d 429, 430 (10th Cir.), cert. denied , No. 96-6330, 1996 WL 604229 (U.S. Dec. 2, 1996). - 2 - Michael W. Nelson. On January 24, 1995, after find ing Del Raine asleep during a scheduled break, Nelson ordered Del Raine to take h is breaks only in the designated break room. The designated break room i s used by smokers, and Del Raine claims to be allergic to second hand smoke. Del Raine filed a civil rights action in the United States District Court for the District of Kansas claiming his Eighth Amendment right to be free from cruel and un usual punishment was violated when he was forcibly exposed to passive sm oke despite defendant’s knowledge of his medical condition. The District C ourt granted Nelson’s motion for summary judgment on two grounds: first, Nelsonallowed Del Raine to leave the designated break room when smokers were present ; second, Del Raine could not show an actual medical injury resulting from hi s exposure to second hand smoke. Del Raine now appeals. 1 We disagree with the district court’s holding that there was no evidence indicating that Del Raine was forced to stay in the designated break room when smokers were present; however, we agree with the di strict court’s determination- 3 -

that Del Raine has not shown an actionable injury. Accordingly, we AFFIRM the judgment of the district court.

DISCUSSION We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c). Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). If we determine that there is a genuine dispute of mat erial fact between the parties, summary judgment is inappropriate. Anderson v. Lib erty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).

A. Issue of Material Fact In support of his motion for summary judgment, Nels on provided the district court with a sworn affidavit indicating th at he ordered Del Raine to take his breaks in the designated break room only when s mokers were not present. Nelson claims that after learning of Del Raine’s me dical condition, he told Del Raine that he could take his breaks in other areas as long as he was in plain view of supervising staff. In response to Nelson’s motion for summary judgment , Del Raine provided a sworn declaration indicating that Nelson never to ld him that he could take- 4 -

breaks outside of the designated break room when sm okers were present. Del Raine asserts that after he advised Nelson that his medical condition prohibited him from being around passive smoke, Nelson declare d that Del Raine was required to take his breaks in the designated breakroom. The district court held that summary judgment was appropriate because there was “no evidence that Del Raine was forcibly exposed to passive smoke” and because it was “clear that Del Raine was afford ed alternatives which would not require him to use the break area at a time whe n other inmates were smoking there.” (Order, at 3). In other words, the distr ict court rejected Del Raine’s testimony and adopted Nelson’s testimony wholesale. We have held that in reviewing a grant of summary judgment, “we examine the factual record and reasonable inferences therefrom in the light most f avorable to the party opposing summary judgment.” Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Although we allow prison officials to make a factua l report on whether a prisoner’s allegations have any factual or legal ba sis, in summary judgment proceedings a court is unauthorized to accepts the factual findings of prison officials if the prisoner has presented conflicting evidence. Northington v. Jackson , 973 F.2d 1518, 1521 (10th Cir. 1992). According ly, the district court erred in determining that there was no material iss ue of fact.- 5 -

B. Actionable Injury The Supreme Court has determined that prison offici als may impose a de
minimis level of inconvenience on prisoners without violat ing the Eighth Amendment. Bell v. Wolfish , 441 U.S. 520, 539 n. 21 (1979). Assuming, as we must, that Del Raine’s version of the facts is corr ect, he must still produce evidence of an actual medical injury to survive sum mary judgment. Del Raine has not produced such evidence. Accordingly, summary j udgment is appropriate in this case. CONCLUSION For the reasons stated above, we AFFIRM the judgment of the district court. The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge