                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-7604



MILO EARL TUDOR, JR.,

                                               Plaintiff - Appellee,

           versus


RICKIE    HARRISON,    Warden     of    Kershaw
Correctional Institution,

                                              Defendant - Appellant,

           and


MICHAEL MOORE, Director of South Carolina
Department   of   Corrections;   DOUG   CATOE,
Assistant   Director    of   South    Carolina
Department   of   Corrections;   STAN   BURTT,
Associate Warden of Kershaw Correctional
Institution; ROBIN CHAVIS,

                                                          Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. R. Bryan Harwell, District Judge.
(CA-98-1927-2-RBH)


Argued:   May 24, 2006                     Decided:   August 23, 2006


Before WIDENER and DUNCAN, Circuit Judges, and James R. SPENCER,
Chief United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.


ARGUED: Vinton DeVane Lide, VINTON D. LIDE & ASSOCIATES, L.L.C.,
Lexington, South Carolina, for Appellant. J. Dennis Bolt, BOLT LAW
FIRM, Columbia, South Carolina, for Appellee. ON BRIEF: Michael S.
Pauley, VINTON D. LIDE & ASSOCIATES, L.L.C., Lexington, South
Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               -2-
PER CURIAM:

       The plaintiff in this 42 U.S.C. § 1983 case sued the South

Carolina prison authorities for existing prison conditions during

his periods of confinement at Kershaw Correctional Institution and

McCormick Correctional Institution.            He claims under the decision

of Helling v. McKinney, 509 U.S. 25 (1993), which held that a

prisoner might state a valid “cause of action under the Eighth

Amendment by alleging that . . . [prison authorities] have, with

deliberate indifference, exposed him to levels of ETS that pose an

unreasonable risk of serious damage to his future health.” 509 U.S.

at 35. ETS stands for environmental tobacco smoke, commonly called

secondhand smoke.

       After considerable maneuvering and pre-trial activity, with

assignment from time to time to several district judges, the case

was tried to the court without a jury.            The court heard much of the

testimony    from    witnesses     ore    tenus   in    open   court    including

prisoners and other lay witnesses, prison officials and employees.

The court also considered the prison records and the result of a

court ordered examination of the premises as to the quantity of

ETS,   as   well    as   reports   and    letters      from   various   witnesses

including experts.       At the conclusion of the trial, the plaintiff

released all defendants from liability except the warden of Kershaw



                                         -3-
Correctional Institution, following which the district court filed

its opinion in writing.

     The district court found in favor of the defendant warden of

Kershaw with respect to all claims except for a period from

February 1999 until November 2001, a period of about 32 months.   It

found that the plaintiff had not shown a shortened life span,

permanent disability, or extreme discomfort, had not shown exposure

to ETS during the daylight hours and had only shown he suffered

from ETS in the late afternoon and evening hours which required the

use of his inhaler.

     The district court based its finding largely on the failure of

the prison to “either adequately enforce the non-smoking policy or

at least make an attempt to develop a screening process which would

restrict placing smokers with nonsmokers who have a medical need,

such as Tudor.”   The fact that Tudor was asthmatic and thus more

susceptible to injury or discomfort from tobacco smoke weighed

heavily in the decision of the district court.   The district court

found an unmet “existing serious medical need,” J.A. 697, and

awarded the plaintiff $100 a month damages for the 32-month period,

$3200.

     We have examined the record and, following briefing and oral

argument, are of opinion that the findings of the district court

are almost entirely factual and are not clearly erroneous.   There

is no reversible error.


                               -4-
The judgment of the district court is accordingly

                                                    AFFIRMED.*




*
 No cross appeal was filed.

                          -5-
