* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination 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not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

February 10, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JEFFERY SCOTT DURHAM,

Plaintiff-Appellant,

v.

ROBERT A. HOOD; T.G. WERLICH;

RANDY MADISON,

Defendants-Appellees.

No. 10-1128

(D.C. No. 1:05-CV-01282-MSK-KLM)

(D. Colo.)

ORDER AND JUDGMENT*

Before O’BRIEN, ANDERSON, and TACHA, Circuit Judges.

In this pro se Bivens action, see Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Jeffery Scott Durham appeals the

dismissal of three defendants for lack of personal jurisdiction, and the grant of

summary judgment on his Eighth Amendment claim. Mr. Durham was an inmate

at the United States Penitentiary-Administrative Maximum (ADX), in Florence,
-2-

Colorado, where he claims defendants were deliberately indifferent to his

involuntary exposure to environmental tobacco smoke (ETS). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s judgment.

***

This action originally included as named defendants Harley Lappin, Harrell

Watts, and G. L. Hershberger, all of whom were Bureau of Prisons (BOP)

officials located in Washington, D.C. Mr. Durham alleged Lappin, as Director of

the BOP, was responsible for managing and regulating all federal penal

institutions, while Watts and Hershberger, as national and regional executives,

were charged with handling inmate administrative appeals. The district court

dismissed these officials for lack of personal jurisdiction, finding they had

insufficient minimum contacts with the state of Colorado. Mr. Durham contested

this ruling and sought to transfer his case to a district where these defendants

would be subject to suit. The court denied his request, however, ruling that such

a transfer would simply substitute one set of defendants for another, since the

transferee court would lack jurisdiction over the Colorado defendants. 

Mr. Durham moved the court to reconsider, but the court maintained that a

transfer would not be in the interest of justice. The court reasoned that although

Mr. Durham might be barred from refiling in a different forum by the applicable

statute of limitations, any delay in suing these defendants in a proper court was

attributable to Mr. Durham alone.
1 A valid conditions-of-confinement claim entails two elements. First, an

inmate must make an objective showing that the exposure or deprivation was

“sufficiently serious,” i.e., that the inmate was “incarcerated under conditions

posing a substantial risk of serious harm.” See Farmer v. Brennan, 511 U.S. 825,

834 (1994) (quotations omitted). Second, an inmate must make a subjective

showing that defendants had a “sufficiently culpable state of mind,” which in this

context “is one of deliberate indifference.” Id. (quotations omitted). 

-3-

Regarding his Eighth Amendment claim, Mr. Durham moved the court to

take judicial notice of various regulations and reports pertaining to ETS exposure. 

He cited the reports as generally showing that ETS is a cause of disease,

including lung cancer, and testified that he himself experienced watery eyes,

difficulty breathing, and headaches as a result of his exposure. Mr. Durham

elicited consistent testimony from an expert, who was permitted to testify that

ETS is a recognized cause of lung cancer and heart disease; can irritate the eyes,

nose, and throat; can cause headaches; and contains toxins. Based on this

evidence, Mr. Durham alleged defendants knew the dangers of ETS but were

deliberately indifferent to the associated risks to his health.

The district court rejected Mr. Durham’s claim, however, concluding he

failed to show the conditions of his confinement violated the Eighth Amendment.1

The court first determined that Mr. Durham did not objectively establish that “‘he

himself [was] being exposed to unreasonably high levels of ETS.’” R., Vol. 5 at

503 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). The court explained

that Mr. Durham’s anecdotal account of his exposure, coupled with the symptoms

he claimed to have suffered as a result, provided no objective indication of what
2 Additionally, the court noted Mr. Durham failed to satisfy the subjective

element of his claim because there was insufficient evidence that defendants were

aware of Mr. Durham’s level of exposure and the health risks he faced.

-4-

his level of exposure truly was. The court further determined that Mr. Durham

failed to show his exposure to ETS violated contemporary standards of decency

because he offered only his symptoms of the alleged ETS exposure and reports

discussing the general health risks associated with ETS. Consequently, and

notwithstanding Mr. Durham’s documentary evidence, the court concluded that

Mr. Durham could not show that he himself was put to a greater risk of

unacceptable harm by some unknown level of exposure.2

***

On appeal, Mr. Durham advances the same arguments raised and rejected in

the district court. He maintains the court erred in dismissing Lappin, Watts, and

Hershberger because they purposefully directed their activities to Colorado, as

evidenced by their operation of a nationwide BOP internet site. This internet site,

Mr. Durham contends, along with these officials’ general business contacts,

suffices to permit the court’s exercise of personal jurisdiction. Alternatively, he

insists his claims against Lappin, Watts, and Hershberger should have been

transferred to another forum. As for his Eighth Amendment claim, Mr. Durham

asserts the court failed to take judicial notice of the proffered reports and

regulations concerning ETS exposure. Simply put, he says this evidence creates a

fact issue whether he was exposed to unreasonably high levels of ETS.
-5-

We review the district court’s jurisdictional and summary judgment rulings

de novo. See Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153,

1159 (10th Cir. 2010) (reviewing personal jurisdiction ruling de novo); Ross v.

Bd. of Regents of Univ. of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010)

(reviewing grant of summary judgment de novo). After examining Mr. Durham’s

appellate materials, the record on appeal, and the relevant legal authorities, we

agree with the district court’s accurate and well-reasoned analyses. 

The court correctly explained that it could not exercise personal jurisdiction

over Lappin because he did not purposefully avail himself of the protection and

benefits of Colorado law simply by virtue of his supervisory role at the BOP. See

generally Rusakiewicz v. Lowe, 556 F.3d 1095, 1100-01 (10th Cir. 2009)

(engaging in minimum contacts analysis). The court similarly recognized that

Watts and Hershberger’s contacts with Colorado were completely fortuitous to the

extent Mr. Durham alleged they were involved in responding to his grievances,

and purely speculative where he simply assumed they had other contacts with the

forum state. R., Vol. 3 at 466 (citing Burger King Corp v. Rudzewicz, 471 U.S.

462, 475 (1985)). Although Mr. Durham sought to avoid this result by

transferring his claims, the court did not abuse its discretion by denying his

request, see Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006),

because Mr. Durham failed to show any proper justification for the transfer, see

id. at 1223 n.16 (discussing factors that bear on court’s decision to transfer). 
-6-

Given these circumstances, we affirm the district court’s jurisdictional and

transfer rulings for substantially the same reasons provided in the court’s orders

dated September 21, 2006, and September 12, 2007.

As for Mr. Durham’s Eighth Amendment claim, there is no merit in his

contention that the court improperly rejected the proffered reports and

regulations. Although the court declined to notice these materials, they were

considered by the court and deemed inconsequential. See R., Vol. 5 at 505-06. 

Indeed, the court correctly observed that although these materials underscored the

general health risks associated with ETS, they failed to objectively establish

Mr. Durham’s individual and particular level of exposure or attendant risk. See

Helling, 509 U.S. at 35 (requiring inmate to “show that he himself [was] exposed

to unreasonably high levels of ETS”). And because Mr. Durham’s anecdotal

accounts of his exposure and the symptoms he claimed to have suffered as a result

likewise failed to objectively establish his exposure level, the district court

properly determined that Mr. Durham did not show his risk from exposure

violated contemporary standards of decency. See id. at 36. Accordingly, we

affirm the district court’s grant of summary judgment for substantially the same

reasons as articulated in its order dated March 11, 2010. 

Entered for the Court

Deanell Reece Tacha

Circuit Judge