## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 1 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ROBERT L. HATCHER, JR.,

Plaintiff-Appellant,

v. LARRY FIELDS, Director, D.O.C.; MIKE PARSONS, Deputy Director, Department of Corrections; BILL SHORE, Coordinator, Lexington A & R Center; STEVE HARGETT, Warden, Joseph Harp Correctional Center; MICHAEL CODY, Warden, Lexington Correctional Center; RON CHAMPION, Warden, Conner Correctional Center; JACK COWLEY, Warden, Oklahoma State Reformatory; BOBBY BOONE, Warden, Mack Alford Correctional Center; EDWARD EVANS, Warden, James Crabtree Correctional Center; DAN REYNOLDS, Warden, Oklahoma State Penitentiary; JAMES SAFFLE, Regional Director, Department of Corrections; MELVIN CAMPBELL, Mail Supervisor, Oklahoma State Penitentiary; JAMES PIERCE, Lt., Oklahoma State Penitentiary; PAT HUMPHRIES, Lt., Oklahoma State Penitentiary; EDDIE MORGAN, Unit Manager, Oklahoma State Penitentiary, Defendants-Appellees. No. 96-7085 (D.C. No. 94-CV-226-S) (E.D. Okla.)This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff, an Oklahoma state inmate appearing pro s e, appeals from the district court’s grant of summary judgment to defen dants in this civil rights suit brought under 42 U.S.C. § 1983. We have jurisdicti on under 28 U.S.C. § 1291, and affirm. This appeal arises from defendants’ second motion f or summary judgment. After their first motion, the district court grante d judgment in favor of defendants on all of plaintiff’s claims except an Eighth Amend ment claim based on exposure to environmental tobacco smoke (ETS). See R. doc. 33. After the district court-3-

entered its order, plaintiff filed an amended compl aint on his remaining claim. He asserted that defendants, acting with deliberate indifference, “exposed him to levels of environmental tobacco smoke (ETS), that p ose an unreasonable risk of serious damage to his present and future health in violation of [the] Eighth Amendment.” Id. doc. 43 at 3; see also id. doc. 49. More specifically, he alleged that he was diagnosed by a doctor at the Oklahoma S tate Penitentiary (OSP) as being “possibly” allergic to tobacco smoke, that th e doctor recommended that defendant be housed in a nonsmoker’s cell, that def endants knew about his allergy and the doctor’s recommendation, and that they neve rtheless forced plaintiff to share cells with smokers for most of the time betwe en October 1992 and September 1993. Id. doc. 43 at 3. He contended his cellmates during this time period included a chain-smoker and another smoker w ho blocked the ventilation system, making the smoke problem worse. He said th at he suffered headaches, chest pain, hypertension, and difficult breathing b ecause of his exposure to ETS, and that he was denied medical treatment. In their second motion for summary judgment, as in the first, defendants asserted the defense of qualified immunity. They c onceded that plaintiff was housed with smokers during much of the time betweenOctober 1992 and September 1993. Their evidence showed that they attempted to find him a nonsmoking cell during this time period, however, b ut were temporarily unable to-4-

do so due to overcrowding. The evidence also showe d that defendants offered to move plaintiff in April 1993 to either of two diffe rent units so he could have a single cell, but he declined the offer. The eviden ce showed, further, that since September 1993, defendants have moved plaintiff rep eatedly--to different facilities, to single cells, or to cells in designated nonsmoking areas--in an attempt to accommodate his alleged need to avoid sm oke. The district court recited plaintiff’s housing assignments and defendants’ responses to plaintiff’s administrative complaints in its order. Noting def endants’ continuous efforts to move plaintiff to a smoke-free environment, the cou rt concluded that plaintiff had failed to demonstrate that there was a genuine issu e of material fact as to whether defendants were deliberately indifferent to his smo ke allergy. Accordingly, the district court granted summary judgment to defendants. Plaintiff contends on appeal that his need to avoidsmoke and defendants’ intentional disregard of this need are genuine issu es of fact to be tried. He also claims that defendants do not enforce their nonsmok ing policies, and that he is still being exposed to unreasonably high levels of ETS. We review the grant of summary judgment de novo, ap plying the same standard as that applied by the district court. Se e Clemmons v. Bohannon , 956 F.2d 1523, 1525 (10th Cir. 1992). “Summary jud gment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file,-5-

together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). We also review defendants’ claim that they are enti tled to qualified immunity de novo. See David v. Gracey , 111 F.3d 1472, 1478 (10th Cir. 1997). Qualified immunity is analyzed in two steps: first , we determine whether plaintiff has alleged the violation of a constitutional right , “and then we decide whether that right was clearly established such that a reas onable person in the defendant’s position would have known that [his] conduct violat ed the right.” Id. (quoting
Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (citing Siege rt v. Gilley , 500 U.S. 226, 231 (1991))). To establish the Eighth Amendment violation plainti ff asserts, he must demonstrate that defendants were deliberately indif ferent to his serious medical need to avoid smoke. See Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996) (citing Estelle v. Gamble , 429 U.S. 97, 104 (1976)). That is, “the Eighth Amendment’s deliberate indifference standard under Estelle has two components: an objective component requiring that the pain or d eprivation be sufficiently serious; and a subjective component requiring that the offending officials act with a sufficiently culpable state of mind.” Handy v. P rice , 996 F.2d 1064, 1067 (10th Cir.1993) (discussing Wilson v. Seiter , 501 U.S. 294, 298 (1991)). “A medical1 See Martinez v. Aaron , 570 F.2d 317 (10th Cir.1978) (en banc). -6- need is serious if it is one that has been diagnose d by a physician as mandating treatment or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Riddle , 83 F.3d at 1202 (further quotation omitted). As for the subjective component, the Sup reme Court recently clarified that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinem ent unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts fr om which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan , 511 U.S. 825, 837 (1994). It is unnecessary to determine whether the right to avoid smoke allegedly violated was clearly established in October 1992, a s plaintiff’s Eighth Amendment claim fails on its merits. The only evid ence of plaintiff’s alleged smoke allergy before 1994 is a medical report writt en by an OSP physician, Dr. Marsh, on March 17, 1990. In that report, whic h defendants transcribed and attached to their Martinez report, 1 Dr. Marsh recorded that plaintiff alleged headaches and breathing problems due to smoke, thatplaintiff was a nonsmoker celled with a smoker, that he was possibly allergic , and that he would be moved to a nonmoking cell. See R. doc. 13, attachment N at 3. Dr. Marsh’s reportdoes not2 Although plaintiff’s original, verified complaint a lleged that he told

defendant James Pierce that he was allergic to smok e and had medical documentation of his allergy, his amended, unverifi ed complaint does not refer to the original, and renders it of no legal effect. S ee King v. Dogan , 31 F.3d 344, 346 (5th Cir. 1994). -7- include a definite diagnosis of a smoke allergy or a direction that plaintiff should avoid smoke, however, and defendants noted that the re was no correspondence advising prison security of plaintiff’s need for a nonsmoking cell in his medical record. See id. Moreover, defendants submitted the affidavit of D r. Shyamkant Kulkarni, M.D., who reviewed plaintiff’s medical re cords from September 1992 through November 1993, and stated that he saw no do cumentation of a smoke allergy or prescriptions for medication used to tre at respiratory allergies. See id. doc. 51, ex. J. He also stated that plaintiff was not treated during this time period for any serious or critical medical problems. See id. Plaintiff has not produced any evidence that any particular defendant knew abo ut Dr. Marsh’s report or plaintiff’s possible allergy to smoke. 2Moreover, plaintiff has offered no evidence to counter defendants’ averments that they offered him a nonsmoking cell in April 1993, but he chose not to move. Considering all of this evidence, we hold that plaintiff has not established that there is a genui ne issue of material fact to be tried as to whether any of the defendants knew thatsmoke constituted an excessive risk to plaintiff’s health before Septemb er 1993, and intentionally disregarded that risk.-8-

Plaintiff’s claim that he is still being exposed to unreasonably high levels of ETS despite defendants’ designation of nonsmokin g housing units, policies of not celling nonsmoking inmates with smokers, and re peated reassignment of plaintiff’s housing to separate him from smokers, i s basically unsupported by any evidence. Two affidavits dated September 1994, both from inmates housed at James Crabtree Correctional Center (JCCC), and bothstating that inmates smoked in the designated nonsmoking unit at JCCC, are too vague to establish that plaintiff was exposed to unreasonably high levels o f ETS at JCCC. See id. doc. 24, attachments “B” & “C.” Furthermore, defen dants have since moved plaintiff away from JCCC. Therefore, the district court did not err in concluding that plaintiff failed to establish a genuine issue of material fact to be tried as to whether defendants have been deliberately indiffere nt to his alleged smoke allergy since September 1993, or in granting summary judgme nt to defendants. Plaintiff’s motion for preliminary injunction or, i n the alternative, motion for temporary restraining order is DENIED. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED. Entered for the Court
Michael R. Murphy Circuit Judge