UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

BYRON SMITH, Plaintiff-Appellant,

v. WILLIAM E. HOWELL, JR., Safety Manager, Federal Bur eau of Prisons, in his official and individual capacity; JOHN PARENT, Custodial Maintenance Services Manager, Federal Bureau of Prisons, in his offi cial and individual capacity; TERESA HARTFIELD, Education Administrator/Principle, Federal Bureau of Prisons, in her official and individual capacity; JEFFERY SINCLAIR, Electric Shop Supervisor, Federal Bureau of Prisons, in his official and individual capacity; JOHN DOE, Education Staff Member, Federal Bureau of Prisons, in his of ficial and individual capacity; JANET DURBIN, Education Staff Member, Federal Bureau of Prisons, in her official and individual capacity; STEPHANIE WHEELER, Safety Officer, Federal Bureau of Prisons, in her official and individual capacity; EDDIE GALLEGOS, Acting Warden, in his individual capacity; NEIL BUSTRAIN, BOP Officer/Card Holder, in his individual capacity, Defendants-Appellees. No. 13-3251 (D.C. No. 5:06-CV-03061-JTM-KGG) (D. Kan.) FILED United States Court of Appeals Tenth Circuit 

### July 2, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - ORDER AND JUDGMENT *

Before MATHESON , EBEL , and PHILLIPS , Circuit Judges.
Plaintiff Byron Smith appeals the dist rict court’s grant of summary judgment on his Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971), claim in favor of the defendants, who are employees and administrators at the Federal Bureau of Prisons and the Un ited States Penitentiary at Leavenworth. 1 Smith alleges the defendants vi olated his Eighth Amendment rights when he was exposed to asbestos while he was an inmate at Leavenworth doing electrical work for the prison. The defendants m oved for summary judgment based on qualified immunity, and the district court gr anted it as to all de fendants. We have jurisdiction under 28 U. S.C. §1291 and affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 Smith’s initial compla int alleged additional cl aims against additional defendants. We previously affirmed the district court’s dismissal of all Smith’s claims against all defendants under the Fede ral Tort Claims Act, as well as his Bivens claims against all defendants except th e remaining defendants named in their individual capacities. Smith v. United States , 561 F.3d 1090, 1099 (10th Cir. 2009).- 3 - In 2003, “Smith received a work order from his supe rvisor, defendant Jeffery Sinclair, to install a new light fixture in a closet in th e prison’s education department.” Smith v. United States , 561 F.3d 1090, 1094 (10th Cir. 2009). A 1994 survey by the Ramsey-Sch illing Consulting Group had documented the presence of asbestos in Leavenworth’s e ducation building and reported that the pipe insulation in this particular closet wa s damaged. Smith claims that defendant John Parent, Leavenworth’s custodial servic es manager, told Smith he had written a memo prior to this work order warning prison officials not to let anyone in the classroom closet due to the damaged asbestos insulation. The 2003 work order was approved by defendant Teresa Hartfield, the education administrator, and was sent to Sinclair by defendant Janet Durbin, a staff member in the education department. 2 Durbin opened the clas sroom closet for Smith and his work crew and showed them where she wanted the light fixture. “While Smith was installing the light fixture, a fell ow inmate, Carlos Gonzalez, . . . who had been instructed by prison staff to clean the closet, then began pulling insulation off of the pipes in the closet, there by filling the air with dust.” Id . Smith alleges that this dust contained asbestos and that the dust irr itated his eyes and throat. Smith and the crew left the closet until the dust settled and “Durbin directed Gonzalez to wait until the light fixture was installed before conti nuing his work in the closet [and t]he work crew suspended work un til the dust settled.” Id

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2 Ms. Durbin was never served with process.- 4 - The next day, Smith was given anothe r work pass by Sinclair and he and the other members of the work crew returned to the closet to finish installing the light fixture. They were again given acces s to the closet by Durbin, and she again supervised their work. Gonz alez was allowed back into the closet wh ile Smith and the others were working inside. Once inside, Gonzalez pulled insulati on off pipes, releasing additional dust to which Smith was exposed. Th e dust again caused irritation to Smith, and the work crew again st opped working until the dust settled. Durbin directed Gonzalez to leave the closet, threatening to write a report on him if he did not comply. After the dust cleared, Smith and the crew continued work on the fixtur e, but could not get the light to work. Durbin called Sincla ir, and he arrived to assist. The job was then completed. Id

. After allowing Smith to conduct limite d discovery, the district court granted summary judgment in favor of all defendants. First, it ruled the evidence taken in the light most favorable to Smith fell short of establishing an Ei ghth Amendment claim for cruel and unusual punishment. The c ourt assumed defendants were previously aware of a low risk of asbest os exposure before the work order and were aware there was friable asbestos 3 in the closet when work continued the second day, 4 but it ruled

3 “A ‘friable’ asbestos material is one that, when dry, may be crumbled, pulverized, or reduced to powder by hand pressure, and includes previously nonfriable material after such previously nonfriable mate rial becomes damaged to the extent that when dry it may be crumbled, pulverized, or reduced to powder by hand pressure.” Adams-Arapahoe Sch. Dist. No. 28-J v. GAF Corp ., 959 F.2d 868, 870 (10th Cir. 1992) (int ernal quotation marks omitted). “R espirable asbestos fibers may be released from ‘fria ble’ asbestos-containing materi als when such materials are disturbed.” Id . Nothing in the district court’ s decision supports Smith’s argument that the court confused friable asbestos with undisturbed a nd intact asbestos.
4 We previously held that Smith plead ed sufficient facts that the defendants were aware that asbestos wa s present in the closet to withstand dismissal under Fed. R. Civ. P. 12(b)(6). Smith , 561 F.3d at 1105.- 5 - the evidence still did not show that defenda nts acted with deliberate indifference in response to the release, or that Smith’s limited exposure amounted to a substantial risk of serious harm. See Farmer v. Brennan , 511 U.S. 825, 828 (1994) (“A prison official’s ‘deliberate indifference’ to a subs tantial risk of serious harm to an inmate violates the Eighth Amendment.”). Second, it ruled even if Smith’s limited exposure to asbestos had been sufficient to cons titute a violation of his Eight Amendment rights, no such violation was clearly esta blished at the time of the incident. See Pearson v. Callahan , 555 U.S. 223, 231 (2009) (gove rnment officials are entitled to qualified immunity where “their condu ct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” (internal quotation marks omitted)). “We review the district court’s gran t of summary judgment de novo, applying the same legal standard used by the district court.” Martinez v. Beggs , 563 F.3d 1082, 1088 (10th Cir. 2009). “When a defendant a sserts qualified immunity at summary judgment,” the plaintiff has the burden “to show that: (1) the defendant violated a constitutional right and (2 ) the constitutional right was clearly established.” Id . We maintain the discretion to d ecide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the par ticular case at hand.” Pearson , 555 U.S. at 236. Smith argues on appeal that defendant s did violate his Eighth Amendment rights and that these rights we re clearly established. We need not address the first- 6 - prong because we find no authority from the Tenth Circuit or the Supreme Court that would have given defendants notice that thei r actions would violat e Smith’s rights. A constitutional right is clearly established when, at the time of the alleged violation, the contours of the right were so clear that a reasonable offi cial would understand that his actions violated that right. Walker v. City of Orem , 451 F.3d 1139, 1151 (10th Cir. 2006). The questi on of whether a right is cl early established must be answered “in light of the specific contex t of the case, not as a broad general proposition.” Morris v. Noe , 672 F.3d 1185, 1196 (10t h Cir. 2012) (internal quotation marks omitted). In order for the law to be clearly established, “there must be a Supreme Court or Tenth Circuit deci sion on point, or the clearly established weight of authority from other courts must have found the [r ight] to be as the plaintiff maintains.” Eidson v. Owens , 515 F.3d 1139, 1148 (10t h Cir. 2008) (internal quotation marks omitted).
In Helling v. McKinney , the Supreme Court held that the Eighth Amendment protects prisoners from an of ficial’s deliberate indiffere nce to conditions posing an unreasonable risk of serious damage to the prisoner’s fu ture health. 509 U.S. 25, 33-35 (1993). At issue in Helling was an inmate’s expos ure to environmental tobacco smoke in the absence of a present physical injury. The Court held an inmate must show he was “exposed to unreasonably high levels” of environmental toxins. Id . at 35. To violate the Eighth Amendmen t, the inmate must show the risk he complains of is one that “soc iety considers . . . so grave that it violates contemporary- 7 - standards of decency to expose anyone unwillingly to such risk.” Helling , 509 U.S. at 36. (“In other words, the prisoner must s how that the risk of which he complains is not one that today’s societ y chooses to tolerate.”). Smith cites no Tenth Circuit or Suprem e Court cases in 2003 holding that a limited exposure to asbestos dust for a few hours poses su ch an objectively serious risk of future harm to o ffend contemporary standards of decency. Indeed, there is no such authority even today. Smith ci tes to an Eleventh Circuit decision, Powell v.
Lennon , 914 F.2d 1459, 1461-64 (11th Cir. 19 90), which denied qualified immunity to prison officials who forced an inmate to remain in his ce ll filled with large quantities of friable asbestos for six months, ignoring the inmate’s repeated requests to be moved to an asbestos-free environmen t. He also cites a Ninth Circuit decision, Wallis v. Baldwin , 70 F.3d 1074, 1075-77 (9th Cir. 1995), which denied qualified immunity where an inmate was required to work for forty-five hours in an unventilated attic containing friable asbe stos scattered all around from broken and damaged asbestos-insulated pi pes, despite a prior order fro m the state fire marshal to remove the material hangi ng from the damaged pipes. 5

5 Smith also relies h eavily on an unpublished Clear Air Act case from the Kansas district court citi ng a Congressional finding that “‘medical science has not established any minimum level of exposure to asbestos fibe rs which is considered to be safe to individuals e xposed to the fibers.’” United States v. A. A. Mactal Constr. Co. , Inc. , No. CIV. A. 89-2372-V, 1992 WL 2456 90, at *3 (D. Kan. Apr. 10, 1992) (unpublished) (quoting 20 U.S. C. § 4011(a)(1)). An unp ublished case having nothing to do with the Eighth Amendment can hardly be said to place Smith’s claim of an Eighth Amendment viol ation beyond debate.- 8 - We agree with the district court that the facts of Powell and Wallis are not sufficiently analogous to the extremely li mited exposure of only a few hours here. See Ashcroft v. al-Kidd , U.S. , 131 S. Ct. 2074, 2083 (2011) (“We do not require a case directly on point, but existin g precedent must have placed the statutory or constitutional question beyond debate.”); Eidson , 515 F.3d at 1148 (stating that to be clearly established law, facts of cases need not be identical, but they must be sufficiently analogous). Both Powell and Wallis involved an inmate’s prolonged exposure to large amounts of friable asbe stos, whereas Smith was exposed only to a small quantity from one damaged pipe for just a few hours. Moreover, Ninth and Eleventh Circuit law are not controlli ng precedent for purposes of qualified immunity. Our survey of au thority from other circuits c onfirms the district court’s conclusion that the weight of authority does not clearly establish a right to be free from even a few hours of expos ure to friable asbestos. We conclude that Smith did not meet hi s burden to show that the constitutional right he claims was violated was clearly es tablished. The judgm ent of the district court is affirmed. Entered for the Court
Gregory A. Phillips Circuit Judge