     Case: 18-40916       Document: 00515229243         Page: 1     Date Filed: 12/09/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                     No. 18-40916                            December 9, 2019
                                   Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
RICKY EUGENE ROSS,

                                                  Plaintiff - Appellant

v.

RICHARD D. ALFORD, Warden II; AARON J. TOMPKINS, Major of
Correctional Officers; VIVIAN DAVIS, Program Supervisor I; MARILYN H.
HARMON, Sergeant of Correctional Officers; BRENDA L. GROGAN, Sergeant
of Correctional Officers; MONICA M. GOODMAN, Captain of Correctional
Officers, DARREN B. WALLACE, Assistant Warden

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:15-CV-330


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis, Ricky Eugene Ross, former
Texas prisoner # 1001745, challenges the summary judgment granted Texas
prison officials Richard D. Alford, Aaron J. Tompkins, Vivian Davis, Marilyn



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 18-40916    Document: 00515229243     Page: 2   Date Filed: 12/09/2019


                                 No. 18-40916

H. Harmon, Brenda L. Grogan, Monica M. Goodman, and Darren B. Wallace
(appellees).   Ross’ action pursuant to 42 U.S.C. § 1983 claimed appellees
violated his Eighth Amendment right to be free from cruel and unusual
punishment, alleging: while imprisoned, his cellmates smoked cigarettes and
marijuana; and appellees did not remedy the violations.        In adopting the
magistrate judge’s report and recommendation, the district court granted
summary judgment to appellees because Ross failed to exhaust administrative
remedies, as required by 42 U.S.C. § 1997e(a); in the alternative, the district
court concluded his Eighth Amendment claim lacked merit. In addition to
those two bases, the magistrate judge’s report and recommendation had
recommended appellees were entitled to qualified immunity.
      Whether summary judgment was properly granted is reviewed de novo.
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In this regard, all facts and inferences are construed in
the light most favorable to the non-movant. Dillon, 596 F.3d at 266 (citation
omitted). “Summary judgment is appropriate if the non-movant fails to make
a showing sufficient to establish the existence of an element essential to that
party’s case.” Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A.,
754 F.3d 272, 276 (5th Cir. 2014) (internal quotation marks omitted) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The judgment may be
affirmed “on any ground supported by the record”. Id. (internal quotation
marks and citation omitted). That includes appellees’ claiming, inter alia,
qualified immunity.
      Overcoming a qualified-immunity defense requires plaintiff show both a
clearly established right and violation of that right. E.g., Hope v. Pelzer, 536



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                                 No. 18-40916

U.S. 730, 739 (2002) (citation omitted); Pierce v. Smith, 117 F.3d 866, 871–72
(5th Cir. 1997) (citation omitted). As relevant in this instance, prisoners have
a clearly established Eighth Amendment right to be free from deliberately
indifferent exposure to unreasonably high levels of environmental-tobacco
smoke. See Helling v. McKinney, 509 U.S. 25, 35–36 (1993).
      Ross provided no competent summary-judgment evidence to overcome
appellees’ being entitled to qualified immunity. Although he alleges he was
“constantly having to inhale second hand smoke of tobacc[o] and marijuana on
a constant basis”, no evidence shows how much smoke this was, or that any
exposure was unreasonable. See id. at 28 (noting complaint alleged plaintiff
shared cell with inmate who daily smoked five packs of cigarettes).
      AFFIRMED.




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