                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0714n.06

                                           No. 09-2400                                    FILED

                          UNITED STATES COURT OF APPEALS
                                                                                      Oct 18, 2011
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


STEPHEN LAMARR HALL,                           )
                                               )
       Plaintiff-Appellant,                    )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
MILLICENT WARREN, et al.,                      )   EASTERN DISTRICT OF MICHIGAN
                                               )
       Defendants-Appellees.                   )
                                               )           OPINION
                                               )

       Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge.*

       JANE B. STRANCH, Circuit Judge. Stephen Lamarr Hall is a prisoner in the custody of

the Michigan Department of Corrections (“MDOC”). He brought this pro se civil rights action under

42 U.S.C. § 1983 against a group of prison officials, alleging that they unreasonably exposed him

to Environmental Tobacco Smoke (“ETS”) despite an MDOC medical notice requiring that he be

placed in tobacco-free housing. Hall appeals the district court’s dismissal of his claims against one

of the officials, and the court’s grant of summary judgment to the others. For the following reasons,

we AFFIRM in part and REVERSE in part and REMAND for further proceedings.

                                 I. FACTUAL BACKGROUND

       From July 2004 to December 2006, Hall was an inmate at Michigan’s Bellamy Creek

Correctional Facility. On April 15, 2005, his medical provider, Dr. Scott Holmes, issued an MDOC

       *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 09-2400
Hall v. Warren, et al.

Special Accommodation Notice (“SAN”) stating that Hall required “Tobacco free housing” and a

“Bottom Bunk.” These housing requirements were specifically designated as “Permanent” on the

SAN. MDOC medical records indicate that Hall was treated for shortness of breath “secondary to

second hand smoke” and was prescribed Albuterol, a bronchodilator commonly used to treat lung

diseases and other breathing ailments.

        On December 22, 2006, Hall was transferred from Bellamy Creek to Thumb Correctional

Facility (“TCF”). Despite the “Permanent” SAN requiring that Hall be placed in tobacco-free

housing, Hall was placed in the Cord Unit, which was not tobacco free. In an affidavit submitted

to the district court, Hall claimed that the smoke in his new unit was intolerable, at times he thought

he was going to pass out, and he stayed very sick. When Hall initially discussed a transfer with

Michael Markee, the Assistant Resident Unit Supervisor at the Cord Unit, Hall recalled that Markee

seemed distant and not very interested and told Hall to KITE1 him to be placed on his list for a

transfer.

        On December 23, Hall sent a KITE to Markee, explaining that he had “a tobacco-smoke free

accommodation” that required he be placed in a housing unit free of all environmental tobacco

smoke (ETS). The KITE asked Markee for a transfer to a tobacco-free unit because he was having

difficulty breathing and chest pains. On the same day, Hall also sent a KITE to Fred Folts, the

Assistant Resident Unit Supervisor at the Burns Unit, which was the tobacco-free unit at TCF.

Hall’s KITE to Folts explained that he was told by one of the unit officers to KITE Folts and Markee


        1
         A KITE is a written form issued by MDOC that inmates use to communicate with
corrections staff.

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Hall v. Warren, et al.

to be moved to a non-smoking unit because he had a tobacco-smoke free permanent accommodation

notice to be placed in the Burns unit. Hall requested Folts to “please help” because he was having

a terrible time breathing with chest pains. Hall also sent KITES to the prison’s health care unit on

December 23 and 25, requesting to see the doctor and be transferred to a tobacco-free unit.

       Hall apparently received no response from Markee or Folts. A few days later, on December

29, Hall sent a handful of additional KITES to several other prison officials. One was sent to

Geraldine Wilson, the Resident Unit Manager:

       I believe (ARUS) Markee and (ARUS) Folts are purposely not responding to my
       KITES to be moved to a smoke free housing unit as I suffer from asthma symptoms
       and cigarette smoke exacerbates my condition. I have a medical accommodation
       notice that is not being honored. Will you please help me[?]

R27-2 at 8. He also sent a KITE to Katherine Corrigan, the Assistant Deputy Warden:

       I know that you are not the person to write to about this kind of problem. However,
       when I attempted to correct the matter by contacting both (ARUS) Markee [and]
       (ARUS) Folts, and when they failed to respond I just wrote (RUM) Wilson, and
       (Warden) Warren. I have very serious medical problems that require I be housed in
       a tobacco-smoke free environment. I also have an accommodation notice in my
       prisoner file stating same. Would you please have me removed to a non-smoking
       unit, as I’m having a very difficult time here.

Id. at 9. Also on December 29, Hall sent a KITE to Millicent Warren, the Warden at TCF:

       Will you please remove me from this unit as I have (asthma) and cigarettes make it
       extremely difficult to breathe, chest pains, headaches, dizziness. I have a permanent
       housing accommodation for me to be placed in another unit. I’m getting very ill
       here, please have me sent over to Burns Unit immediately.

Id. at 10. Hall sent follow-up KITES to Markee and Folts also on December 29, reiterating that the

SAN requiring tobacco-free housing was not being honored and notifying them that he was writing

to their supervisors (i.e., Wilson, Corrigan, and Warren) regarding the issue. On the same day, Hall

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Hall v. Warren, et al.

sent another KITE to the heath care unit, repeating his need to be moved and requesting medical staff

to intervene on his behalf.

       At some point in early January 2007, Hall discussed his continuing need for tobacco-free

housing with Markee. Hall followed-up on that conversation on January 4, with a KITE to Markee:

       After our conversation I expected you to have contacted (ARUS) Folts by now to
       have me moved. What’s the problem with me getting moved out of this unit[?] It
       has become clear you are not going to help me move and neither is anyone else.

Id. at 11. Hall also sent a similar follow-up KITE to Folts on the same day:

       I’m writing to find out whether or not you heard anything from (ARUS) Marke [sic]
       or anyone else I’ve attempted to contact. Markee said he was going to talk to you and
       have me moved over to your unit, will you please call him for me! I am so sick!

Id. at 12. And he sent another follow-up KITE to Wilson:

       I have been trying to get moved from this unit since my coming to this facility
       12/22/06. Will you please do something to help me get moved to a non smoking
       unit[?] After all, everyone tells me there is no smoking in any government buildings
       and no one will move me, maybe you will!

Id. at 13. Hall sent a follow-up KITE to the health care unit on the same day, and submitted more

formal requests for medical treatment on January 6 and 11.

       In an affidavit submitted to the district court, Markee acknowledged reviewing Hall’s record

in early January 2007 and noticing the SAN requiring tobacco-free housing. He also recalled seeing

Hall on January 9, calling Folts about the SAN he noticed in Hall’s file, and Folts telling him that

he could not move Hall to the top of the waiting list because all of the units are designated as smoke

free and he could not remove other inmates who had waited their turn to get into the Tobacco Free




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Hall v. Warren, et al.

Unit. Folts, however, submitted an affidavit contradicting Markee’s account, claiming that he did

not recall being made aware of Hall’s request to move to the Tobacco Free Unit in January 2007.

       On February 28, Hall sent additional KITES to Folts and Wilson reiterating his request to be

transferred to a tobacco-free unit. On March 1, he sent a similar KITE to Corrigan and another one

to Wilson. The KITE to Wilson read: “I really don’t think you will answer me but . . . please know

I have tried everything to get you people to respond to my KITES and I continue to be denied--I

won’t be trying again. I still can’t breathe!” Id. at 17.

       On March 13, Hall filed a formal grievance with prison officials pursuant to MDOC’s three-

step grievance procedure. In it, Hall claimed that attempts were made to resolve this matter by

speaking with the ARUS about a transfer to a smoke free unit. Because nothing was done to date,

Hall said he was compelled to grieve the matter because he was sick with difficult breathing and

pain. He continued:

       I have medical problems that prohibit me from being exposed to cigarette smoke for
       which I was given a permanent tobacco free housing accommodation ordered by Dr.
       Scott L. Holmes. I arrived at this facility 12/22/06 and I am still being housed in a
       smoking unit, where I have been suffering from breathing problems that are
       becoming more serious by the day. I have exercised patience and I am now suffering
       the consequences for it. I need to see the doctor and be moved immediately. The
       ARUS in this unit has known of my condition since my arrival as I have made several
       requests to be moved having been told there are no beds ready. This grievance is
       specifically directed at Mr. Markee ARUS for Cord [Unit] that has a smoke free
       accommodation and a signed smoke free procedure form in my file.

R27 at 42.

       Wilson was the initial Stage I respondent to Hall’s grievance. Her investigation concluded

that there was a permanent order for Hall to be placed in a tobacco free unit. She noted that prison


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Hall v. Warren, et al.

staff was “working diligently” to accommodate Hall, but that Folts reported there were no “empties”

at this time. Wilson reported that Hall was put at the top of the list. Wilson’s supervisor, Corrigan,

reviewed and signed the response in accordance with MDOC policy.

       On March 22, Hall filed a Stage II appeal, reiterating that “smoking is prevalent throughout”

his unit and that he required tobacco-free housing. After he filed his Stage II appeal, Hall was moved

to the tobacco-free Burns Unit on March 24. Warren then responded to the appeal at Stage II, noting

that Hall had been moved but acknowledging that he was on the waiting list a considerable length

of time because he needed a lower bunk in addition to the tobacco free accommodation. Although

he had been moved to a tobacco-free unit, Hall nevertheless filed a Stage III appeal. MDOC’s

Grievance and Appeals section responded to the Stage III appeal, concluding that the grievance had

been resolved by his placement in Burns Unit.

                             II. PROCEDURAL BACKGROUND

       On November 6, 2008, Hall filed this action in the Eastern District of Michigan, using the

court-provided form for pro se prisoner civil rights complaints under 42 U.S.C. § 1983. As

defendants, he named Warren, Corrigan, Wilson, Markee, and Folts. He also named Dr. Joseph

Burtch, the primary healthcare provider at TCF. Hall broadly alleged that the defendants violated

the Eighth Amendment by unreasonably exposing him to second hand cigarette smoke for three

months, 12/22/06 to 3/24/07, despite the SAN that ordered permanent smoke/tobacco free housing.

He alleged that the defendants knew of the accommodation order in his prisoner file and simply

ignored the doctor’s order. He claimed that he suffered injury from over exposure to second hand



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Hall v. Warren, et al.

smoke and sought $50,000 in compensatory damages and $500,000 in punitive damages against each

defendant.

       On February 5, 2009, counsel for Warren, Corrigan, Wilson, Markee, and Folts filed a motion

for summary judgment. They argued that they were entitled to qualified immunity because there was

no evidence to support a finding of deliberate indifference to a serious medial need in violation of

the Eighth Amendment. Defendants claimed that the April 15, 2005 SAN requiring tobacco-free

housing was superceded by a subsequent SAN, dated May 18, 2006, which did not require such a

placement. Defendants also questioned the legitimacy of Hall’s claims, pointing out that, although

the possession of smoking paraphernalia was permitted in the Cord Unit (i.e., it was not “tobacco

free”), smoking itself was strictly prohibited.

       On February 16, the other defendant, Dr. Burtch, filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). Burtch argued that dismissal of Hall’s claims against him

was required for failure to exhaust administrative remedies because Hall did not specifically name

him or any other medical staff in his formal grievance as required by MDOC’s grievance procedure.

Burtch was the only defendant to make this non-exhaustion argument in the district court.

       Hall responded to the motion for summary judgment on March 2. He attached the numerous

KITES discussed above, which he claimed to have sent prison officials notifying them of the SAN

and requesting transfer to a tobacco-free unit. He argued that all of the defendants were liable

because they undertook no affirmative steps to address his need to be properly placed in housing

conducive to his medical condition. He specifically challenged the defendants’ argument that the

tobacco-free SAN was superceded and no longer in effect, attaching MDOC Policy Directive

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Hall v. Warren, et al.

04.06.160, which provided that permanent SANs are valid at all facilities unless cancelled. Hall also

responded to Burtch’s motion to dismiss, clarifying that his claim against Burtch was based on his

failure to ensure the enforcement of the SAN requiring tobacco-free housing. He attached the KITES

and health care requests sent to medical staff, and argued that his claim should not be barred for

failure to exhaust because, at the time of the grievance’s filing, he was not aware of Burtch’s name.

        The case was assigned to a magistrate judge, who issued his Report and Recommendation

(“R&R”) on August 7, 2009. The magistrate recommended that Hall’s claims against Burtch be

dismissed for failure to exhaust because Hall failed to name Burtch in the grievance as required by

MDOC procedures. He also recommended that Hall’s claims against Burtch be dismissed, and

summary judgment be granted to Warren, because they were not personally involved in the alleged

unconstitutional conduct. The magistrate recommended summary judgment be granted to Corrigan,

Wilson, and Markee because there was no evidence that they were deliberately indifferent to Hall’s

medical needs. According to the magistrate, however, a reasonable jury could find that Folts was

deliberately indifferent given Markee’s affidavit indicating that he notified Folts in early January

regarding Hall’s SAN and that Folts took no immediate action.

        Folts filed an objection to the R&R within 10 days of it being filed. Hall, however, did not

do so. The district court issued an order and judgment on September 21, 2009, adopting the R&R

in part and rejecting it in part. First, the district court concluded that it was under no obligation to

independently review the record regarding the claims against defendants Burtch, Warren, Corrigan,

Wilson, and Markee because Hall did not file any objections to the R&R. Accordingly, the court

dismissed the claims against these parties for the reasons explained in the R&R. Second, the court

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Hall v. Warren, et al.

rejected the magistrate’s recommendation that summary judgment be denied to Folts. According to

the court, even assuming that Folts knew of Hall’s SAN in early January, his actions did not

constitute a sign of Folts’ deliberate indifference; rather, the delay in accommodating plaintiff’s

request for the Burns Unit showed a deliberate concern on the part of Folts to accommodate both of

Hall’s medical related needs, his need for a bottom bunk and for a smoke-free environment. The

court also concluded that there was no evidence that Hall actually suffered from a sufficiently serious

medical need requiring tobacco-free housing.

       On the same day the district court dismissed the case, Hall filed his untimely objections to

the R&R. He alleged that he did not receive the R&R until September 8 and that he had ten days

to respond to the R&R after that date. He also filed a motion for enlargement of time to object to

the magistrate’s R&R. On September 25, the district court issued an order acknowledging receipt

of Hall’s motion and objections, and noting that they appeared to have been prepared before receipt

of the district court’s order dismissing the case. The court granted the motion for additional time,

expressly stating that it would consider plaintiff’s objections. The court construed the objections as

a motion for reconsideration and carefully reviewed the objections. The objections did not persuade

the district court to change its previous disposition. Hall filed a timely notice of appeal on October

20, 2009.

                                          III. ANALYSIS

A.     Hall’s Objections to the Report and Recommendation

       As a preliminary matter, we briefly consider Hall’s argument that the district court erred by

treating his objections to the magistrate’s R&R as a motion for reconsideration. Hall contends that

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Hall v. Warren, et al.

his objections should have been considered timely under 28 U.S.C. § 636(b)(1) and Federal Rule of

Civil Procedure 72(b) because he did not receive the R&R until September 8, 2009. Although Hall

believes he was prejudiced by the district court’s decision to treat his objections as a motion for

reconsideration, our review of the record convinces us otherwise. The district court exercised its

discretion to enlarge the time for Hall to file his objections. See Patterson v. Mintzes, 717 F.2d 284,

286–87 (6th Cir. 1983) (holding that a district court may accept and consider objections filed beyond

limitations period). The court carefully reviewed plaintiff’s objections and came to the conclusion

that they were the same arguments considered and rejected by the magistrate judge and the court.

The district court construed the objections as a motion for reconsideration simply because the case

had been dismissed. Given that all of Hall’s objections to the R&R were considered by the district

court, Hall has failed to establish prejudicial error resulting from the district court’s treatment of his

objections.

B.      Claims Against Defendant Burtch

        The district court dismissed Hall’s claim against Burtch for failure to exhaust administrative

remedies. The district court held that Hall failed to satisfy MDOC grievance procedures, which

require prisoners to name each person against whom they grieve. Hall challenges the district court’s

dismissal on appeal, primarily arguing that, at the time he filled out the administrative grievance, he

did not know Burtch’s name and should not be required to provide it on the grievance form because

prison officials failed to interview him as required by MDOC grievance procedures.

        Under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “[p]risoners must

exhaust their administrative remedies before challenging prison conditions.” Grinter v. Knight, 532

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Hall v. Warren, et al.

F.3d 567, 577 (6th Cir. 2008). As the Supreme Court explained in Jones v. Bock, 549 U.S. 199

(2007), “prisoners must complete the administrative review process in accordance with the

applicable procedural rules—rules that are defined not by the PLRA, but by the prison grievance

process itself.” Id. at 218 (internal citation and quotation marks omitted). Although “exhaustion is

not per se inadequate simply because an individual later sued was not named in the grievances,” id.

at 219, a plaintiff generally fails to exhaust administrative remedies by failing to include an official’s

name in a grievance if it is required by the applicable grievance procedures, Sullivan v. Kasajaru,

316 F. App’x 469, 470 (6th Cir. 2009).

        MDOC Policy Directive 03.02.130 lays out the MDOC process applicable to Hall’s

grievance. It specifically requires the grievance to include the dates, times, places, and names of all

those involved in the issue being aggrieved. Neither Burtch nor any other medical official is named

in Hall’s grievance. Although Hall’s grievance indicates that Hall wished to see a doctor, it does not

allege that a medical official committed any wrongful act. Instead, the grievance is exclusively

concerned with the need for a transfer to a tobacco-free unit. Hall’s argument that he needed an

interview to learn Burtch’s name is unpersuasive given the absence of any medical-related claim in

his grievance. For these reasons, the district court correctly dismissed Hall’s claim against Burtch

for failure to exhaust administrative remedies.

C.      Claims Against Remaining Defendants

        Hall contends that the district court erred by granting summary judgment to the remaining

defendants. Summary judgment is warranted where “there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In considering

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Hall v. Warren, et al.

a motion for summary judgment, “the court must view the evidence and draw all reasonable

inferences in favor of the non-moving party.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,

570 (6th Cir. 2003) (en banc) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986)). The essential question is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).

        Defendants Warren, Corrigan, Wilson, Markee, and Folts all assert entitlement to qualified

immunity. “Under the doctrine of qualified immunity, ‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). Determining whether the prison officials in this case are

entitled to qualified immunity requires two inquiries: “First, viewing the facts in the light most

favorable to the plaintiff, has the plaintiff shown that a constitutional violation has occurred?

Second, was the right clearly established at the time of the violation?” Id. at 538–39. We may

exercise our discretion to decide which inquiry to address first in light of the circumstances of the

case. See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009).

        1.      Constitutional Violation

        A prisoner alleging an Eighth Amendment claim under Section 1983 must prove two

elements. The first, which is an objective inquiry, requires the prisoner to show that the official’s

alleged mistreatment was “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994)

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Hall v. Warren, et al.

(internal quotation marks omitted). The second, a subjective component, requires him to show that

the official had “a sufficiently culpable state of mind”—i.e., “one of deliberate indifference to inmate

health or safety.” Id. (internal quotation marks omitted).

        a.      Objective Component

        In the context of ETS claims, a prisoner establishes the objective component of an Eighth

Amendment claim by showing that (i) he has an existing serious medical need for a smoke-free

environment, Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992), or (ii) regardless of current

health, the level of ETS in the prison creates an unreasonable risk of serious damage to his future

health, Helling v. McKinney, 509 U.S. 25, 35 (1993). Hall’s complaint is based on the defendants’

alleged disregard of his existing medical needs rather than a risk of future harm. Hall alleges that

he is a chronic care patient with “serious medical needs” and has “suffered injury from over exposure

to second hand smoke”.

        A reasonable jury could conclude that Hall had an objectively serious medical need for a

smoke-free environment. “A serious medical need is ‘one that has been diagnosed by a physician

as mandating treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.’” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (quoting

Blackmore v. Kalamazoo County, 390 F.3d 890, 897 (6th Cir. 2004)). Hall presented medical

records from June 2005 indicating that he was treated for shortness of breath secondary to second

hand smoke and was prescribed albuterol. Hall also introduced a “Permanent” SAN, issued by his

MDOC medical provider, specifically stating that he required “Tobacco free housing.” This

evidence is sufficient to create a genuine issue of material fact as to the objective seriousness of

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Hall v. Warren, et al.

Hall’s need for a smoke-free environment. See, e.g., Jacobs v. Young, 134 F.3d 371, 1997 WL

809925, at *2 (6th Cir. Dec. 17, 1997) (unpublished table opinion) (holding that prisoner established

a genuine issue of material fact by introducing medical records indicating he had angina and

emphysema and recommending he share a cell with a non-smoker).

       In the district court, Defendants argued that the tobacco-free SAN was superceded by a

subsequent SAN, issued on May 18, 2006, which did not list any tobacco-free housing requirement.

As Hall and the magistrate pointed out, however, the applicable MDOC policy provides that

permanent SANs are valid at all facilities unless cancelled. And in order for a SAN to be cancelled,

there must be approval from a medical service provider after an examination of the prisoner. The

record contains no evidence of any such cancellation. Hall further supported the validity of the April

2005 SAN by introducing an MDOC Special Accommodations History form, printed February 26,

2009, indicating that the tobacco-free SAN was still effective as of that date.

       We invited the defendants to file a brief specifically addressing the effectiveness of Hall’s

medical notice purportedly requiring tobacco-free housing. They accepted our invitation and adhered

to their position that the SAN is outdated and was superseded by the May 2006 SAN. However, the

defendants completely failed to address—let alone refute—the applicability of the MDOC policy

providing that permanent SANs remain effective unless cancelled. For these reasons, we conclude

that Hall presented enough evidence to survive summary judgment on the objective component of

his Eighth Amendment claim.




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       b.      Subjective Component

       The second inquiry is whether there is evidence sufficient to allow a reasonable jury to

conclude that each defendant acted with deliberate indifference to Hall’s existing medical needs.

A prison official is deliberately indifferent “only if he knows that inmates face a substantial risk of

serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer,

511 U.S. at 847. “Whether a prison official had the requisite knowledge of a substantial risk is a

question of fact subject to demonstration in the usual ways, including inference from circumstantial

evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very

fact that the risk was obvious.” Id. at 842 (internal citation omitted).

       Existing precedent convinces us that Hall introduced sufficient evidence of deliberate

indifference to survive summary judgment given the numerous unanswered KITE notices Hall sent

to the defendants notifying them of his medical condition and requesting that they comply with the

SAN requiring tobacco-free housing. In Jacobs v. Young, a panel of this Court reversed a district

court’s summary judgment for prison official defendants where the plaintiff alleged deliberate

indifference to his serious medical need for smoke-free housing. 1997 WL 809925, at *3. We held

that the plaintiff established a genuine issue of material fact as to whether the defendants acted with

deliberate indifference where the plaintiff “filed grievances complaining about being housed with

smokers, and defendants denied these grievances.” Id. As the Court concluded, this evidence

suggested “that defendants were aware that [plaintiff] faced the risk of harm by being housed with

smokers, yet defendants disregarded that risk.” Id.



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       Our sister circuits have reached similar results. In Murrell v. Chandler, 277 F. App’x 341

(5th Cir. 2008), the Fifth Circuit reversed a grant of summary judgment to a group of prison officials

where the plaintiff “presented evidence that he advised [the officials], either verbally or in written

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

having serious health problems as a result.” Id. at 343–44. The Court concluded that “[t]his

evidence create[d] a genuine issue of material fact as to whether the defendants were involved in

violating [plaintiff’s] Eighth Amendment right to be free of cruel and unusual punishment.” Id. at

344. Similarly, in Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003), the Third Circuit held that the

prison-official defendants were not entitled to summary judgment based on qualified immunity on

a prisoner’s claims that they exposed him to unreasonable levels of ETS. Id. at 269. The court

concluded that the prisoner’s allegations that he had written letters to “prison officials about his

sensitivity to ETS [and] no change was made in housing conditions” was sufficient to overcome

summary judgment because it “demonstrate[d] deliberate indifference on the part of prison officials.”

Id.

       Like the plaintiffs in Young, Murrell, and Atkinson, Hall introduced evidence creating a

genuine issue of material fact regarding whether each of the defendants knew of a substantial risk

of harm to Hall and failed to take reasonable steps to abate it. As noted above, Hall produced written

KITE notices sent to each prison official notifying them of his previously diagnosed medical

condition and requesting that they comply with the MDOC SAN requiring tobacco-free housing.




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Although several of the defendants deny receiving these KITES,2 whether the defendants were

informed of a substantial risk of harm to Hall (either by the KITES or otherwise) is a question of fact

“subject to demonstration in the usual ways,” Farmer, 511 U.S. at 842, and appropriately decided

by the trier of fact.

        Defendants challenge the seriousness of the risk of harm to Hall by contending that all

MDOC facilities were non-smoking and that this smoking prohibition was strictly enforced. Such

conclusory allegations, however, do not establish as a matter of law that the risk of harm to Hall was

insignificant. Hall has produced evidence indicating that an MDOC medical provider specifically

prescribed tobacco-free housing—not simply non-smoking housing—and that the defendants failed

to comply with that prescription for several months despite repeatedly being made aware of it. Hall

also submitted an affidavit specifically alleging in relevant part that the smoke in the Cord Unit was

“intolerable” at times. Defendants certainly may argue before the trier of fact that, in light of the

non-smoking policy and its alleged enforcement, the risk to Hall was “insubstantial or nonexistent,”

Farmer, 511 U.S. at 844, but their conclusory claims at this stage are insufficient to establish

entitlement to summary judgment.3


        2
         Corrigan and Wilson submitted affidavits denying receipt of any KITE from Hall regarding
tobacco-free housing. Warren, however, submitted no affidavit denying receipt. Markee denied
receiving any KITE after January 9, 2007 (without addressing whether he received any before that
date), and Folts acknowledged receiving at least one of the KITES approximately two weeks before
Hall filed his grievance Although Folts contended this was the first he learned of Hall’s need for
tobacco-free housing, Markee claimed that he informed Folts of Hall’s SAN and his need in early
January 2007.
        3
       Similarly, the defendants might demonstrate to the satisfaction of the trier of fact that “they
responded reasonably to the risk” created by Hall’s housing placement and thus should “be found

                                                - 17 -
No. 09-2400
Hall v. Warren, et al.

        Warren, who is the warden at TCF, argues that the district court’s summary judgment as to

her was appropriate because Section 1983 liability may not be based on a respondeat superior basis.

Although we agree that liability may not be imputed to a supervisor based entirely upon the actions

of a subordinate, see, e.g., Monell v. Dep’t of Soc. Servs. of New York City , 436 U.S. 658, 691

(1978), “this does not automatically mean that a supervisor can never incur liability under § 1983,”

Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 81 (6th Cir. 1995). Supervisors can be held liable for

their own “active unconstitutional conduct . . . rather than on their supervision of others engaging

in unconstitutional conduct.” Spencer v. Bouchard, 449 F.3d 721, 730 (6th Cir. 2006).

        Hall claims that Warren personally failed to transfer him to tobacco-free housing despite

receiving a written KITE alerting her to Hall’s serious medical condition and the need for a transfer.

This was not a “vague and generalized” notice insufficient to notify a warden “of the specific

concerns about [a prisoner’s medical] needs and alleged deprivation.” Estate of Young v. Martin,

70 F. App’x 256, 261 (6th Cir. 2003). Rather, it clearly documented his medically prescribed need

for tobacco-free housing and requested Warren to effectuate a transfer to the Burns Unit because he

was getting very ill. Warren has failed to introduce any evidence establishing her lack of

involvement in making or overseeing transfer decisions at TCF. Taken in the light most favorable




free from liability.” Farmer, 511 U.S. at 844. For example, Markee might argue that he notified
Folts immediately upon learning of the tobacco-free SAN, and Folts might claim that he could not
immediately place Hall in tobacco-free housing because of his additional need for a lower bunk. But
again, the record as it exists now is not sufficiently clear to establish as a matter of law that any of
the defendants acted reasonably in response to the alleged risk of harm.

                                                 - 18 -
No. 09-2400
Hall v. Warren, et al.

to Hall, this record is sufficient to create a genuine issue of fact as to whether Warren was

subjectively aware of the risk of harm to Hall.4

        In sum, we express no view as to the ultimate merits of Hall’s claim that each of the

defendants acted with deliberate indifference. At this stage, however, we are required to view the

facts in the light most favorable to Hall, and genuine issues of material fact exist as to whether (i)

Hall had an objectively serious medical need for tobacco-free housing and (ii) each of the defendants

subjectively knew that Hall faced a substantial risk of serious harm and recklessly disregarded that

risk by failing to take reasonable measures to abate it.

        2.      Clearly Established Right

        Because there are genuine issues of material fact as to whether the defendants committed a

constitutional violation, we reach the second question—whether the right was clearly established at

the time of the alleged violation. “For a right to be clearly established, the contours of the right must

be sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal quotation marks omitted). “This

is not to say that an official action is protected by qualified immunity unless the very action in

question has previously been held unlawful, but it is to say that in light of pre-existing law the

unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002).


        4
         Even if Hall’s claim against Warren were based on her supervisory role, Warren could still
be held liable if she “implicitly authorized, approved or knowingly acquiesced in the unconstitutional
conduct of [an] offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). The
unanswered KITES could lead a reasonable juror to conclude that Warren knowingly acquiesced in
her subordinates’ refusal to transfer Hall to a tobacco-free unit. For this additional reason, Warren
is not entitled to summary judgment based on her supervisory position.

                                                 - 19 -
No. 09-2400
Hall v. Warren, et al.

       In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court recognized an Eighth

Amendment claim based on a prison official’s deliberate indifference to a prisoner’s existing serious

medical needs. As the Court explained,

       deliberate indifference to serious medical needs of prisoners constitutes the
       unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.
       This is true whether the indifference is manifested by prison doctors in their response
       to the prisoner’s needs or by prison guards in intentionally denying or delaying access
       to medical care or intentionally interfering with the treatment once prescribed.
       Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness
       or injury states a cause of action under § 1983.

Id. at 104 (internal citations, footnotes, and quotation marks omitted).

       In Hunt v. Reynolds, we applied this line of reasoning in the ETS context, holding that a

prisoner with a serious medical need could state an Eighth Amendment claim based on exposure to

ETS. 974 F.2d at 735. Other circuits took the same approach, recognizing that Estelle clearly

established ETS claims of deliberate indifference based on a prisoner’s existing serious medical

needs. See, e.g., Atkinson, 316 F.3d at 268; Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir. 1995).

And in 2002, we affirmed a judgment and damages in favor of a Michigan prisoner alleging that

exposure to ETS constituted deliberate indifference to his serious medical needs. See Reilly v.

Grayson, 310 F.3d 519, 521 (6th Cir. 2002); see also Talal v. White, 403 F.3d 423, 427–28 (6th Cir.

2005) (reversing dismissal of Eighth Amendment claim based on prisoner’s exposure to ETS).

       In light of this well-established authority, Hall’s allegations, if true, state a violation of the

Eighth Amendment that was apparent at the time of the defendants’ alleged wrongful conduct.

Consequently, Hall has satisfied the second requirement to overcome the defendants’ motion for

summary judgment based on qualified immunity.

                                                - 20 -
No. 09-2400
Hall v. Warren, et al.

                                       CONCLUSION

       For the aforementioned reasons, we AFFIRM the district court’s dismissal of Hall’s claims

against Burtch, but REVERSE the district court’s summary judgment on the claims against Warren,

Corrigan, Wilson, Markee, and Folts, and REMAND for further proceedings consistent with this

opinion.




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