Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-2418

RONALD BOURDEAU, ET AL.,

Plaintiffs, Appellants,

v.

A. T. WALL, RIDOC DIRECTOR,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

 Torruella, Lipez and Howard,

Circuit Judges.

Ronald Bourdeau and Anthony P. Meo on brief pro se.

Patrick C. Lynch, Attorney General, and Thomas A. Palombo,

Assistant Attorney General on Memorandum in Support of Motion for

Summary Disposition.

October 12, 2004
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Per Curiam. Appellants Anthony Meo and Ronald

Bourdeau, inmates at the Adult Correctional Institution in

Rhode Island, appeal from the district court's grant of summary

judgment in favor of Ashbel T. Wall, Director of the Rhode

Island Department of Corrections. By order dated October 8,

2003, the district court accepted the September 11, 2003 Report

and Recommendation of a magistrate judge, recommending the

grant of summary judgment. We affirm, agreeing substantially

with the reasoning in the Report that the undisputed facts

showed no deliberate indifference to appellants' health and

welfare on Wall's part. Some months after appellants filed

their complaint asserting that they were being injured by

environmental tobacco smoke at the prison, Wall announced a new

policy that would totally ban the use of tobacco products at

the prison as of February 2003. Moreover, as long ago as

October 1999, he had authorized an investigation into the

possibility of totally banning such products. 

In the following, we briefly address the appellants'

arguments directed to this issue. Our appellate standard is

well-known. Rosen Construction Ventures, Inc. v. Mintz, Levin,

Cohn, Ferris, Glovsky and Popeo, P.C., 364 F.3d 399, 404 (1st

Cir. 2004) (court reviews grant of summary judgment de novo and

summary judgment is proper where the record discloses "no

genuine issue as to any material fact and that the moving party
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is entitled to judgment as matter of law") (citing Fed. R. Civ.

P. 56(c)).

1. Appellants dispute certain facts, which were

included in Wall's statement of undisputed facts to the

district court. They also claim that Wall's failure to respond

to certain grievances they filed in the fall of 2001 regarding

the environmental tobacco smoke in their unit shows his

deliberate indifference to their health and welfare. But they

fail to elaborate adequately on either argument, and we have

found nothing in the record that would suggest that Wall was

deliberately indifferent to their medical or health needs.

2. Appellants contend that the district court

erroneously admitted evidence that Wall had promulgated a total

ban on the use of tobacco products at the prison, effective

February 3, 2003. But the rule of evidence they cite is not

applicable since Wall offered that evidence to show that he was

not culpable as alleged. See Fed. R. Evid. 407, 1972 Adv.

Comm. Notes ("Exclusion is called for only when the evidence of

subsequent remedial measures is offered as proof of negligence

or culpable conduct.")

3. Appellants assert that Wall knowingly violated

state law declaring smoking to be a public nuisance. See R.I.

Gen. Laws § 23-20.6-1 and .6-2. But his total ban on the use

of tobacco at the prison was consistent with that law, as was
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the earlier more limited restriction on smoking which became

effective in 1995 while he was Assistant Director for

Administration.

Affirmed.