* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40340

Summary Calendar

GETZELL JOHNSON MURRELL, SR

Plaintiff-Appellant

v.

ERNEST V CHANDLER, Warden; MARIE J CARTER, Administrative Warden;

AL HAYNES, Associate Warden; RONALD G THOMPSON, Regional Director;

O IVAN WHITE, Assistant Regional Director; ET AL

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:01-CV-184

Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Getzell Johnson Murrell, federal inmate # 87468-011, appeals the district

court’s denial of his pro se suit filed pursuant to Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Murrell alleged that the

defendants violated his Eighth Amendment right to be free from cruel and

unusual punishment when they failed to enforce a no smoking policy at the

United States Court of Appeals

Fifth Circuit

F I L E D

April 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-40340

2

prison in Beaumont, Texas, thereby exposing him to excessive levels of

environmental tobacco smoke (ETS). This court vacated the district court’s

dismissal of Murrell’s ETS claim for failure to state a claim for which relief could

be granted and remanded the case to the district court for further proceedings.

On remand, the district court dismissed Defendant Harrell Watts for lack

of personal jurisdiction and dismissed the remaining defendants pursuant to

summary judgment. Murrell does not challenge the dismissal of Defendant

Watts for lack of subject matter jurisdiction and has, therefore, abandoned any

argument relative to his dismissal. See Geiger v. Jowers, 404 F.3d 371, 373 n.6

(5th Cir. 2005) 

Murrell argues that the district court violated the law of the case doctrine

when it granted summary judgment for the defendants on his ETS claim.

Murrell misapprehends the difference between dismissals for failure to state a

claim and the availability of summary judgment. Summary judgment is

appropriate when, considering all of the allegations in the pleadings, depositions,

admissions, answers to interrogatories, and affidavits, and drawing inferences

in the light most favorable to the nonmoving party, “‘there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a

matter of law.’” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en

banc) (quoting FED. R. CIV. P. 56(c)). If the moving party meets his burden of

showing that no genuine issue exists, the burden shifts to the nonmoving party

to produce evidence or set forth specific facts showing the existence of a genuine

issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The

nonmovant cannot satisfy his summary judgment burden with conclusional

allegations, unsubstantiated assertions, or only a scintilla of evidence. Little, 37

F.3d at 1075. This court reviews the grant of a motion for summary judgment

de novo. Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). 

To succeed on a Bivens cause of action, the plaintiff must demonstrate a

constitutional violation. Garcia v. United States, 666 F.2d 960, 961 (5th Cir.
No. 07-40340

3

1982). A Bivens action is analogous to an action under § 1983 except that § 1983

applies to constitutional violations by state, rather than federal actors;this court

does not distinguish between Bivens and § 1983 claims. Izen v. Catalina,

398 F.3d 363, 367 n.3 (5th Cir. 2005).

In Helling v. McKinney, 509 U.S. 25, 28 (1993), the Supreme Court set

forth a two-prong test to determine whether exposure to second-hand smoke

entitles an inmate to injunctive relief because it violates his Eighth Amendment

right to be free from cruel and unusual punishment. First, a prisoner must

prove objectively that he is “being exposed to unreasonably high levels of ETS.”

Helling, 509 U.S. at 35. In assessing this first factor, the court must inquire into

the seriousness of the potential harm and into the likelihood that second-hand

smoke will actually cause such harm. Id. at 36. The court is further required

to determine “whether society considers the risk . . . to be so grave that it

violates contemporary standards of decency to expose anyone unwillingly to such

a risk.” Id. Second, the prisoner must show subjectively that prison authorities

demonstrated a “deliberate indifference” to his plight. Id.

Murrell’s sworn declaration included the following competent summary

judgment evidence: he was assigned to a non-smoking unit but smokers were

housed at the same unit; he was exposed to excessive levels of ETS 12 to 24

hours a day in his housing unit and at the factory where he worked; the smoke

was often so thick in his housing unit that he had to hold a wet towel over his

face to breathe; he advised the defendants that the no smoking policy was not

being enforced and that he was having serious health problems that included

migraine headaches and respiratory problems. See Hart v. Hairston, 343 F.3d

762, 764 n.1, 765 (5th Cir. 2003). This evidence creates genuine issues of

material fact regarding whether Murrell objectively proved that he was exposed

to unreasonably high levels of ETS and whether the defendants were

subjectively deliberately indifferent to his plight. See Helling, 509 U.S. at 35-

36;Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), abrogated on other grounds,
No. 07-40340

4

Booth v. Churner, 532 U.S. 731 (2001) (Prisoner Litigation Reform Act requires

exhaustion of administrative remedies regardless of what relief is available

through administrative procedures), and Rochon v. City of Angola, 122 F.3d 319,

320 (5th Cir. 1997). Therefore, the district court erred when it granted summary

judgment for the defendants on Murrell’s ETS claim.

Murrell further argues that the district court erred when it granted

summary judgmentfor Defendants Carter, White, Mallisham, Watts, Thompson,

Saputo, and Williams because he had no evidence oftheir personal involvement.

A supervisory official is not liable for the actions of subordinates on a theory of

vicarious liability or respondeat superior, but he will have personal liability if

he is personally involved in a constitutional deprivation or if there is a sufficient

causal connection between the supervisor’s conduct and the violation.

Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). 

Murrell presented evidence that he advised Defendants Carter, White,

Mallisham, Thompson, Saputo, and Williams, either verbally or in written

grievances, that the no smoking policy was not being enforced at the prison at

Beaumont and that he was having serious health problems as a result. This

evidence creates a genuine issue of material fact as to whether the defendants

were involved in violating Murrell’s Eighth Amendment right to be free of cruel

and unusual punishment. See Thompkins, 828 F.2d at 303-04. Accordingly, the

district court’s grant of summary judgment for these defendants on the basis

that they lacked personal involvement was error. 

Murrell argues that the district court erred when it determined that the

defendants were entitled to qualified immunity from his suit. Public officials are

entitled to qualified immunity from suit under § 1983 unless the plaintiff makes

specific allegations that the officials violated clearly established law. Morin v.

Caire, 77 F.3d 116, 120 (5th Cir. 1996). This court uses a two-part test to

determine if qualified immunity applies. “First, [this court] determine[s] if the
No. 07-40340

5

plaintiff has stated a violation of a clearly established constitutional right. If so,

[this court] next examine[s] the reasonableness of the defendant’s conduct.” Id.

As set forth above, Murrell has presented evidence that creates a genuine

issue of material fact as to whether the defendants violated his Eighth

Amendment right to be free from cruel and unusual punishment. The

defendants, therefore, are not entitled to qualified immunity. See Rochon, 122

F.3d at 320.

The judgment for defendant Watts is AFFIRMED; judgment for the

remainder of the defendant-appellees is REVERSED and REMANDED.