                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6884



DWAYNE MANNING,

                                            Plaintiff - Appellant,


          versus


LAMBERT; REID; DULA; ROGERS; GREEN; CUTTER;
BRENIZE; GRAY; NURSE SMITH; BORROC; GOURIOUX;
ANDREWS; COX; CRUMP; JOHNSON; MOST; HOLLIER;
NAVALANEY; SINES; HART; BERNAZOLLI; LEWIS;
EZEKIEL; FINGER; BOGDAN; ASBOURN; SHEARIN;
UNITED STATES DEPARTMENT OF JUSTICE; BUREAU OF
PRISONS; JOHN DOES; JANE DOES,

                                           Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-03-2057-AW)


Submitted:   December 20, 2004             Decided:   July 20, 2005


Before WILLIAMS, KING, and SHEDD, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Dwayne Manning, Appellant Pro Se. Matthew Wayne Mellady, UNITED
STATES DEPARTMENT OF JUSTICE, Annapolis Junction, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            Dwayne Manning, a federal inmate, filed this Bivens*

action alleging that he has suffered harm since 1999 and will

suffer future harm from exposure to environmental tobacco smoke

(“ETS”) during his incarceration at FCI Cumberland.                He alleged

violations of his Eighth Amendment rights, as well as a claim under

the   Federal    Tort   Claims   Act.     In   his   complaint    and    in   his

declaration submitted in response to Defendants’ motion for summary

judgment, Manning averred that staff and inmates routinely violate

the   prison’s   smoking   policy   and     that   he   is   suffering   health

consequences as a result of the high level of ETS to which he is

exposed.    He also stated that prison guards do not enforce the

smoking policy.     The district court granted summary judgment, and

Manning appeals.

            Summary judgment is only appropriate when there is no

genuine issue of material fact given the parties’ burdens of proof

at trial.     See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986).             In determining whether the

moving party has shown that there is no genuine issue of material

fact, a court must assess the factual evidence and all inferences

to be drawn therefrom in the light most favorable to the non-moving

party. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th



      *
      Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).

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Cir. 1996).     We review the grant of summary judgment de novo.

Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).

           After a careful review of the record, we find that the

district court inappropriately credited the Defendants’ evidence

and discredited Manning’s evidence.            Viewing the evidence in the

light most favorable to Manning, we find that he has raised

material issues of fact as to whether he was being exposed to

“unreasonably high levels of ETS” under Helling v. McKinney, 509

U.S. 25, 35 (1993), whether he suffered from a serious injury or

medical need under Estelle v. Gamble, 429 U.S. 97, 106 (1976), and

whether Defendants exercised ordinary diligence in enforcing the

smoking policy. Accordingly, we reverse the district court’s grant

of   summary   judgment   and   remand   for    further   proceedings.   We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                     REVERSED AND REMANDED




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