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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2827

___________

DAVID PEPE WILSON,

Appellant

v.

SHARON M. BURKS, Unit Manager;

MARK A. KRYSEVIG, Superintendent of SCI Cresson;

KRISTEN P. REISINGER, Chief Grievance Officer, Department of Corrections

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 07-CV-00293)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 5, 2011

Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

(Opinion filed: April 14, 2011)

___________

OPINION

___________

PER CURIAM

David Pepe Wilson, an inmate at SCI-Cresson, filed a civil rights complaint in the 

United States District Court for the Western District of Pennsylvania. The District Court 

dismissed certain defendants, and later granted summary judgment in favor of the one 
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remaining defendant. Wilson then filed a post-decision motion, which the District Court 

denied. Wilson filed a notice of appeal. After Wilson filed his opening brief, Appellees 

filed a motion to dismiss the appeal. The motion and Wilson‟s response were referred to 

this panel, and the Appellees were directed to file a brief. After having considered the 

motions and briefs, we find that we have jurisdiction to consider the issues Wilson raises 

on appeal, and we will remand the case for further proceedings in the District Court.

I.

Wilson is serving a sentence of fifty-five (55) to 110 years in prison at S.C.I. 

Cresson. He filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he was 

exposed to second-hand smoke, or environmental tobacco smoke (“ETS”), from inmates 

in his block in violation of his Eighth Amendment rights. He asserted that he could not 

identify the inmates who are smoking in his block because he cannot see other inmates 

from his cell. In the past, he had reported smoking by his cell-mate, which the officers 

did nothing about. Wilson noted that he had received radiation treatment at prison for 

problems with his thyroid gland, and that his doctors had advised him to avoid exposure 

to ETS. He claimed that the defendants have been deliberately indifferent to his health 

needs and that his grievance requests for a transfer to SCI-Chester, a facility where all 

smoking is banned (and cigarettes are not sold at the commissary), had been either 

ignored or denied.

On the defendants‟ motion, the District Court dismissed the Complaint as to 

defendants Krysevig and Reisinger because Wilson failed to show their personal 
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involvement.1 Defendant Burks filed a motion for summary judgment, claiming that 

Wilson could not establish deliberate indifference on her part because she fully 

investigated Wilson‟s grievance and ensured him that any inmates violating the smoking 

ban on his block would be disciplined. The District Court directed the parties to provide 

evidence quantifying the amount of ETS to which Wilson is exposed and the level of 

exposure that would pose a quantifiable risk to Wilson‟s health given his thyroid 

condition.

Upon consideration of all of the parties‟ submissions, the Magistrate Judge issued 

a Report recommending that summary judgment be granted in favor of Burks. Wilson 

filed objections. On April 15, 2009, the District Court overruled Wilson‟s timely 

objections, adopted the Magistrate Judge‟s Report, and entered judgment for defendant 

Burks. On April 24, 2009, Wilson filed a motion titled “Motion to Alter or Amend 

Judgment, Under Federal Rules of Civil Procedure Rule 59(e),” which the District Court 

denied. This appeal followed.

II.

Appellees have filed a motion to dismiss/quash the appeal. Appellees argue as 

follows: (1) Wilson‟s notice of appeal mentions only the June 1, 2009 order denying his 

post-decision motion; (2) that order construed Wilson‟s motion to alter or amend 

judgment as a motion filed pursuant to Rule 60(b) of the Federal Rules of Civil 

Procedure; (3) an appeal from an order denying a Rule 60(b) motion does not bring up 

 

1 Wilson‟s brief does not raise any challenge to this order; we thus do not address it. F.D.I.C. 

v. Deglau, 207 F.3d 153, 169-70 (3d Cir. 2000).
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the underlying judgment for review; but (4) Wilson‟s brief only challenges the underlying 

(April 15, 2009) order. Appellees argue that this Court thus lacks jurisdiction to consider 

the only issues that are raised. Wilson filed a response in opposition to dismissal.

Appellees‟ argument in support of dismissing the appeal rests primarily on the 

District Court‟s characterization of Wilson‟s motion as a Rule 60(b) motion. Appellees 

properly cite Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 

263 n.7 (1978), for the proposition that the appeal of the denial of a Rule 60(b) motion 

does not bring up the underlying judgment for review. However, we find that the District 

Court mischaracterized the motion.

As noted above, Wilson‟s motion was titled, “Motion to Alter or Amend 

Judgment, Under Federal Rules of Civil Procedure Rule 59(e).” We recognize that the 

title of the motion is not dispositive. “[T]he function of the motion, and not the caption, 

dictates which Rule is applicable.” United States v. Fiorelli, 337 F.3d 282, 287-88 (3d 

Cir. 2003). The District Court order noted that Wilson‟s motion quoted Rule 60‟s 

language regarding “misrepresentation,” and denied the motion “as he fails to 

demonstrate a misrepresentation that he claims.” Dist. Ct. Order, dkt. #59. It is true that 

Wilson‟s motion quotes some of Rule 60‟s language, including language concerning a 

court‟s ability to relieve a party from a final judgment because of misrepresentation. But 

Wilson seems to misunderstand what Rule 60 means by “misrepresentation”: he states 

that the “misrepresentation” involved in the case was the failure to provide him with legal 

representation. See dkt. #56 (“The misrepresentation, in a indigent person, who knows 

little or nothing at all . . . [a]nd plaintiff had made repeated efforts to obtain a lawyer on 
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his own, as well as requested this Honorable court to please appoint him legal counsel.”). 

His attached memorandum of law also complains about the District Court‟s failure to 

appoint counsel, and its failure to hold his pro se filings to less strict standards. The 

memorandum of law further disputes the District Court‟s analysis of the evidence 

regarding the prevalence of ETS in his cell block. See dkt. #57. We conclude that the 

motion is best construed as an attempt to relitigate the District Court‟s purported legal 

error in failing to appoint counsel, and its purported failure to exercise a relaxed standard 

in evaluating pro se filings. These issues have nothing to do with “misrepresentation”

and were properly raised in a motion filed pursuant to Rule 59(e) of the Federal Rules of 

Civil Procedure. Cf. Fiorelli, 337 F.3d at 288 (movant‟s allegation that District Court 

should have held an evidentiary hearing on his claim is allegation of error of law properly 

brought in Rule 59(e) motion).

Because Wilson‟s motion in the District Court was a valid Rule 59(e) motion, we 

have jurisdiction to consider all the issues Wilson raises on appeal. A timely Rule 59(e)

motion tolls the time to appeal from the original judgment. Wilson‟s Rule 59(e) motion 

was filed within ten days of the order granting summary judgment,2and his notice of 

appeal was timely filed after the Court denied his motion. Although his notice of appeal 

mentions only the June 1, 2009 order, we have held that we “can exercise jurisdiction 

over orders not specified in the Notice of Appeal if: (1) there is a connection between the

 

2 At the time in question, the Rule required that a movant file a motion for 

reconsideration within ten days; the Rule was amended effective December 1, 2009 to 

change the time for filing a timely motion to alter or amend judgment from 10 days to 28 

days.
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specified and unspecified orders; (2) the intention to appeal the unspecified order is 

apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief 

the issues.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010)

(internal quotation and citation omitted).

Wilson‟s Rule 59(e) motion displays an attempt to relitigate, at least in part, the 

April 15, 2009 order denying summary judgment. But even if Wilson‟s intent to appeal 

the earlier order is not entirely clear from the Rule 59(e) motion, then the intent is at least 

clear from his “Concise Statement of Matters” attached to his notice of appeal. That 

statement, quoted below verbatim, clearly challenges the merits of the summary 

judgment order:

[T]he U.S. District Court have failed to see that the plaintiff have already 

proven to this court, that the defendant had already stated, that there are 

always going to be inmates who tend to break the rules, as well as this 

facility stating that even with the best of intentions, that the DOC staff 

cannot prevent inmates from violating institutional policies, of this 

secondhand smoke, that is unconstitutionally exposing the plaintiff to 

environmental tobacco smoke, under the Eighth Amendment, Farmer v. 

Brennan, 511 U.S. 825, 837 (1994).

The Appellees are not prejudiced by our review of the earlier order, as they were at least 

partially on notice through Wilson‟s Rule 59(e) motion and his notice of appeal that he 

intended to challenge the earlier ruling, and they were certainly on notice after reading 

his opening brief. Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d 

Cir.1977) (per curiam) (“if from the notice of appeal itself and the subsequent 

proceedings on appeal it appears that the appeal was intended to have been taken from an 

unspecified judgment order or part thereof, the notice may be construed as bringing up 
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the unspecified order for review”). We thus hold that we have jurisdiction to consider the 

issues Wilson raises in his brief.

III.

We exercise plenary review over the District Court‟s order granting summary 

judgment. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004). Summary judgment is 

proper where, viewing the evidence in the light most favorable to the nonmoving party 

and drawing all inferences in favor of that party, there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 

56(c)(2) (2009) (amended December 2010); Reedy v. Evanson, 615 F.3d 197, 210 (3d 

Cir. 2010). 

In order to show an Eighth Amendment “conditions of confinement” violation, a 

plaintiff must show that the defendants knew of and disregarded an excessive risk to his 

health. Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which 

the inference could be drawn that a substantial risk of serious harm exists, and he must 

also draw the inference.” Id. Liability based on exposure to ETS requires proof of: (1) 

exposure to unreasonably high levels of ETS contrary to contemporary standards of 

decency; and (2) deliberate indifference by the authorities to the exposure to ETS. 

Helling v. McKinney, 509 U.S. 25, 35 (1993). 

Here, the Magistrate Judge found that there was no evidence that defendant Burks 

was deliberately indifferent to the risk of Wilson‟s exposure to ETS. The Magistrate 

Judge noted that SCI-Cresson has had a non-smoking policy in place since 2000 and that 

there have been occasional violations of the policy despite the prison‟s best efforts to stop 
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smoking in unauthorized areas through disciplinary action. Specifically, the Magistrate 

Judge cited to record evidence that, of the total of 2442 disciplinary citations issued at the 

prison in 2007 and 2008, only 56 were for smoking. He inferred from the small number 

of disciplinary actions that the incidence of second-hand smoke resulting from 

impermissible smoking was rare. While the Magistrate Judge acknowledged the 

difficulty Wilson had in identifying the particular inmate(s) responsible for smoking in 

his block (because Wilson could not see or because he feared retaliation), he found that 

Wilson failed “to identify one instance when one inmate smoked one cigarette, much less 

one specific incident where defendant Burks failed to enforce the no-smoking policy.” 

Report at 2. The Magistrate Judge specifically noted that the affidavits Wilson submitted 

failed to provide such evidence. 

As for whether the level of Wilson‟s exposure to ETS was unreasonably high, the 

Magistrate Judge found inadequate Wilson‟s general statements that tobacco smoke 

“lingers in the air” on the block “for hours.” Id. at 3. He also noted defendant Burks‟

inability to locate any accepted scientific literature on what comprised an 

epidemiologically significant level of second-hand smoke, and discounted the “popular 

literature” from the American Lung Association (submitted by Wilson) because it failed 

to make any scientifically verifiable correlation between level of exposure and risk. Id. 

Although the Magistrate Judge readily acknowledged that the clinically significant level 

of exposure to second-hand smoke might be lower for Wilson than for other inmates 

because of his thyroid condition he stated that “general allegations that there is „some‟

ETS in prison are always insufficient to create an issue of fact as to the objective element 
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of a Helling v. McKinney claim.” Id.

We find, after considering the evidence in the light most favorable to Wilson, that 

there is a genuine issue of material fact concerning whether Burks was deliberately 

indifferent to the risk of Wilson‟s exposure to unreasonably high levels of ETS. The 

affidavits of Wilson‟s current and former cell-mates call into question the Magistrate 

Judge‟s finding that Wilson failed “to identify one instance when one inmate smoked one 

cigarette, much less one specific incident where defendant Burks failed to enforce the 

no-smoking policy.” Report at 2. Both affiants witnessed second-hand smoke “lingering 

everyday on the block,” suggesting that Wilson‟s exposure to ETS was a pervasive, 

everyday affair. See Wilson‟s Response to District Court Order, Dkt. #49, Exhs. A and B

at ¶ 3. Moreover, the affidavits raise a factual issue as to whether the small number of 

disciplinary citations issued for violations of the non-smoking policy meant that exposure 

to second-hand smoke was occasional (which is what the Magistrate Judge inferred) or 

whether the smoking ban was just poorly enforced. Here, the affiants support the latter 

view, attesting that “there isn‟t any kind of smoking allowed on any of the blocks, here at 

SCI-Cresson. But that isn‟t stopping inmates from doing it in here.” Id. at ¶ 4. Indeed, 

in her answer to Wilson‟s grievance, Burks stated that “[a]lthough D-unit is a no-smoking 

unit, there are always going to be inmates who tend to break the rules.” Dkt. #37, Exhibit 

2, at page 32 of 39. Wilson‟s grievance also alerted Burks to the fact that he had been 

given radiation treatment, and that he had been told by a doctor that he should not be 

around people who are smoking. Id. at page 31 of 39.

Of course, we express no opinion on the merits of the claim. We do conclude, 
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however, that Wilson has raised a genuine issue of material fact regarding his Eighth 

Amendment claim. We will therefore vacate the District Court order and remand for 

further proceedings. The District Court may wish to appoint counsel on remand.3

 

3 Appellees‟ motion to dismiss is denied.