                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 09-2827
                                     ___________

                               DAVID PEPE WILSON,
                                               Appellant

                                           v.

                     SHARON M. BURKS, Unit Manager;
            MARK A. KRYSEVIG, Superintendent of SCI Cresson;
    KRISTEN P. REISINGER, Chief Grievance Officer, Department of Corrections
                  ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                        (D.C. Civil Action No. 07-CV-00293)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 5, 2011
              Before: SCIRICA, SMITH and VANASKIE, Circuit Judges

                             (Opinion filed: April 14, 2011)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      David Pepe Wilson, an inmate at SCI-Cresson, filed a civil rights complaint in the

United States District Court for the Western District of Pennsylvania. The District Court

dismissed certain defendants, and later granted summary judgment in favor of the one

                                           1
remaining defendant. Wilson then filed a post-decision motion, which the District Court

denied. Wilson filed a notice of appeal. After Wilson filed his opening brief, Appellees

filed a motion to dismiss the appeal. The motion and Wilson‟s response were referred to

this panel, and the Appellees were directed to file a brief. After having considered the

motions and briefs, we find that we have jurisdiction to consider the issues Wilson raises

on appeal, and we will remand the case for further proceedings in the District Court.

                                            I.

      Wilson is serving a sentence of fifty-five (55) to 110 years in prison at S.C.I.

Cresson. He filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he was

exposed to second-hand smoke, or environmental tobacco smoke (“ETS”), from inmates

in his block in violation of his Eighth Amendment rights. He asserted that he could not

identify the inmates who are smoking in his block because he cannot see other inmates

from his cell. In the past, he had reported smoking by his cell-mate, which the officers

did nothing about. Wilson noted that he had received radiation treatment at prison for

problems with his thyroid gland, and that his doctors had advised him to avoid exposure

to ETS. He claimed that the defendants have been deliberately indifferent to his health

needs and that his grievance requests for a transfer to SCI-Chester, a facility where all

smoking is banned (and cigarettes are not sold at the commissary), had been either

ignored or denied.

      On the defendants‟ motion, the District Court dismissed the Complaint as to

defendants Krysevig and Reisinger because Wilson failed to show their personal



                                            2
involvement.1 Defendant Burks filed a motion for summary judgment, claiming that

Wilson could not establish deliberate indifference on her part because she fully

investigated Wilson‟s grievance and ensured him that any inmates violating the smoking

ban on his block would be disciplined. The District Court directed the parties to provide

evidence quantifying the amount of ETS to which Wilson is exposed and the level of

exposure that would pose a quantifiable risk to Wilson‟s health given his thyroid

condition.

       Upon consideration of all of the parties‟ submissions, the Magistrate Judge issued

a Report recommending that summary judgment be granted in favor of Burks. Wilson

filed objections.    On April 15, 2009, the District Court overruled Wilson‟s timely

objections, adopted the Magistrate Judge‟s Report, and entered judgment for defendant

Burks. On April 24, 2009, Wilson filed a motion titled “Motion to Alter or Amend

Judgment, Under Federal Rules of Civil Procedure Rule 59(e),” which the District Court

denied. This appeal followed.

                                                II.

       Appellees have filed a motion to dismiss/quash the appeal. Appellees argue as

follows: (1) Wilson‟s notice of appeal mentions only the June 1, 2009 order denying his

post-decision motion; (2) that order construed Wilson‟s motion to alter or amend

judgment as a motion filed pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure; (3) an appeal from an order denying a Rule 60(b) motion does not bring up


   1
     Wilson‟s brief does not raise any challenge to this order; we thus do not address it. F.D.I.C.
v. Deglau, 207 F.3d 153, 169-70 (3d Cir. 2000).
                                                3
the underlying judgment for review; but (4) Wilson‟s brief only challenges the underlying

(April 15, 2009) order. Appellees argue that this Court thus lacks jurisdiction to consider

the only issues that are raised. Wilson filed a response in opposition to dismissal.

       Appellees‟ argument in support of dismissing the appeal rests primarily on the

District Court‟s characterization of Wilson‟s motion as a Rule 60(b) motion. Appellees

properly cite Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257,

263 n.7 (1978), for the proposition that the appeal of the denial of a Rule 60(b) motion

does not bring up the underlying judgment for review. However, we find that the District

Court mischaracterized the motion.

       As noted above, Wilson‟s motion was titled, “Motion to Alter or Amend

Judgment, Under Federal Rules of Civil Procedure Rule 59(e).” We recognize that the

title of the motion is not dispositive. “[T]he function of the motion, and not the caption,

dictates which Rule is applicable.” United States v. Fiorelli, 337 F.3d 282, 287-88 (3d

Cir. 2003). The District Court order noted that Wilson‟s motion quoted Rule 60‟s

language regarding “misrepresentation,” and denied the motion “as he fails to

demonstrate a misrepresentation that he claims.” Dist. Ct. Order, dkt. #59. It is true that

Wilson‟s motion quotes some of Rule 60‟s language, including language concerning a

court‟s ability to relieve a party from a final judgment because of misrepresentation. But

Wilson seems to misunderstand what Rule 60 means by “misrepresentation”: he states

that the “misrepresentation” involved in the case was the failure to provide him with legal

representation. See dkt. #56 (“The misrepresentation, in a indigent person, who knows

little or nothing at all . . . [a]nd plaintiff had made repeated efforts to obtain a lawyer on

                                              4
his own, as well as requested this Honorable court to please appoint him legal counsel.”).

His attached memorandum of law also complains about the District Court‟s failure to

appoint counsel, and its failure to hold his pro se filings to less strict standards. The

memorandum of law further disputes the District Court‟s analysis of the evidence

regarding the prevalence of ETS in his cell block. See dkt. #57. We conclude that the

motion is best construed as an attempt to relitigate the District Court‟s purported legal

error in failing to appoint counsel, and its purported failure to exercise a relaxed standard

in evaluating pro se filings. These issues have nothing to do with “misrepresentation”

and were properly raised in a motion filed pursuant to Rule 59(e) of the Federal Rules of

Civil Procedure. Cf. Fiorelli, 337 F.3d at 288 (movant‟s allegation that District Court

should have held an evidentiary hearing on his claim is allegation of error of law properly

brought in Rule 59(e) motion).

       Because Wilson‟s motion in the District Court was a valid Rule 59(e) motion, we

have jurisdiction to consider all the issues Wilson raises on appeal. A timely Rule 59(e)

motion tolls the time to appeal from the original judgment. Wilson‟s Rule 59(e) motion

was filed within ten days of the order granting summary judgment,2 and his notice of

appeal was timely filed after the Court denied his motion. Although his notice of appeal

mentions only the June 1, 2009 order, we have held that we “can exercise jurisdiction

over orders not specified in the Notice of Appeal if: (1) there is a connection between the


   2
      At the time in question, the Rule required that a movant file a motion for
reconsideration within ten days; the Rule was amended effective December 1, 2009 to
change the time for filing a timely motion to alter or amend judgment from 10 days to 28
days.
                                             5
specified and unspecified orders; (2) the intention to appeal the unspecified order is

apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief

the issues.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010)

(internal quotation and citation omitted).

       Wilson‟s Rule 59(e) motion displays an attempt to relitigate, at least in part, the

April 15, 2009 order denying summary judgment. But even if Wilson‟s intent to appeal

the earlier order is not entirely clear from the Rule 59(e) motion, then the intent is at least

clear from his “Concise Statement of Matters” attached to his notice of appeal. That

statement, quoted below verbatim, clearly challenges the merits of the summary

judgment order:

       [T]he U.S. District Court have failed to see that the plaintiff have already
       proven to this court, that the defendant had already stated, that there are
       always going to be inmates who tend to break the rules, as well as this
       facility stating that even with the best of intentions, that the DOC staff
       cannot prevent inmates from violating institutional policies, of this
       secondhand smoke, that is unconstitutionally exposing the plaintiff to
       environmental tobacco smoke, under the Eighth Amendment, Farmer v.
       Brennan, 511 U.S. 825, 837 (1994).

The Appellees are not prejudiced by our review of the earlier order, as they were at least

partially on notice through Wilson‟s Rule 59(e) motion and his notice of appeal that he

intended to challenge the earlier ruling, and they were certainly on notice after reading

his opening brief. Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d

Cir.1977) (per curiam) (“if from the notice of appeal itself and the subsequent

proceedings on appeal it appears that the appeal was intended to have been taken from an

unspecified judgment order or part thereof, the notice may be construed as bringing up


                                              6
the unspecified order for review”). We thus hold that we have jurisdiction to consider the

issues Wilson raises in his brief.

                                            III.

       We exercise plenary review over the District Court‟s order granting summary

judgment. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004). Summary judgment is

proper where, viewing the evidence in the light most favorable to the nonmoving party

and drawing all inferences in favor of that party, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c)(2) (2009) (amended December 2010); Reedy v. Evanson, 615 F.3d 197, 210 (3d

Cir. 2010).

       In order to show an Eighth Amendment “conditions of confinement” violation, a

plaintiff must show that the defendants knew of and disregarded an excessive risk to his

health. Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Id. Liability based on exposure to ETS requires proof of: (1)

exposure to unreasonably high levels of ETS contrary to contemporary standards of

decency; and (2) deliberate indifference by the authorities to the exposure to ETS.

Helling v. McKinney, 509 U.S. 25, 35 (1993).

       Here, the Magistrate Judge found that there was no evidence that defendant Burks

was deliberately indifferent to the risk of Wilson‟s exposure to ETS. The Magistrate

Judge noted that SCI-Cresson has had a non-smoking policy in place since 2000 and that

there have been occasional violations of the policy despite the prison‟s best efforts to stop

                                             7
smoking in unauthorized areas through disciplinary action. Specifically, the Magistrate

Judge cited to record evidence that, of the total of 2442 disciplinary citations issued at the

prison in 2007 and 2008, only 56 were for smoking. He inferred from the small number

of disciplinary actions that the incidence of second-hand smoke resulting from

impermissible smoking was rare.         While the Magistrate Judge acknowledged the

difficulty Wilson had in identifying the particular inmate(s) responsible for smoking in

his block (because Wilson could not see or because he feared retaliation), he found that

Wilson failed “to identify one instance when one inmate smoked one cigarette, much less

one specific incident where defendant Burks failed to enforce the no-smoking policy.”

Report at 2. The Magistrate Judge specifically noted that the affidavits Wilson submitted

failed to provide such evidence.

       As for whether the level of Wilson‟s exposure to ETS was unreasonably high, the

Magistrate Judge found inadequate Wilson‟s general statements that tobacco smoke

“lingers in the air” on the block “for hours.” Id. at 3. He also noted defendant Burks‟

inability to locate any accepted scientific literature on what comprised an

epidemiologically significant level of second-hand smoke, and discounted the “popular

literature” from the American Lung Association (submitted by Wilson) because it failed

to make any scientifically verifiable correlation between level of exposure and risk. Id.

Although the Magistrate Judge readily acknowledged that the clinically significant level

of exposure to second-hand smoke might be lower for Wilson than for other inmates

because of his thyroid condition he stated that “general allegations that there is „some‟

ETS in prison are always insufficient to create an issue of fact as to the objective element

                                              8
of a Helling v. McKinney claim.” Id.

      We find, after considering the evidence in the light most favorable to Wilson, that

there is a genuine issue of material fact concerning whether Burks was deliberately

indifferent to the risk of Wilson‟s exposure to unreasonably high levels of ETS. The

affidavits of Wilson‟s current and former cell-mates call into question the Magistrate

Judge‟s finding that Wilson failed “to identify one instance when one inmate smoked one

cigarette, much less one specific incident where defendant Burks failed to enforce the

no-smoking policy.” Report at 2. Both affiants witnessed second-hand smoke “lingering

everyday on the block,” suggesting that Wilson‟s exposure to ETS was a pervasive,

everyday affair. See Wilson‟s Response to District Court Order, Dkt. #49, Exhs. A and B

at ¶ 3. Moreover, the affidavits raise a factual issue as to whether the small number of

disciplinary citations issued for violations of the non-smoking policy meant that exposure

to second-hand smoke was occasional (which is what the Magistrate Judge inferred) or

whether the smoking ban was just poorly enforced. Here, the affiants support the latter

view, attesting that “there isn‟t any kind of smoking allowed on any of the blocks, here at

SCI-Cresson. But that isn‟t stopping inmates from doing it in here.” Id. at ¶ 4. Indeed,

in her answer to Wilson‟s grievance, Burks stated that “[a]lthough D-unit is a no-smoking

unit, there are always going to be inmates who tend to break the rules.” Dkt. #37, Exhibit

2, at page 32 of 39. Wilson‟s grievance also alerted Burks to the fact that he had been

given radiation treatment, and that he had been told by a doctor that he should not be

around people who are smoking. Id. at page 31 of 39.

      Of course, we express no opinion on the merits of the claim. We do conclude,

                                            9
however, that Wilson has raised a genuine issue of material fact regarding his Eighth

Amendment claim. We will therefore vacate the District Court order and remand for

further proceedings. The District Court may wish to appoint counsel on remand.3




      3
          Appellees‟ motion to dismiss is denied.
                                                10
