     Case: 08-31089         Document: 00511015144         Page: 1     Date Filed: 01/28/2010




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

                                                    FILED
                                                                              January 28, 2010

                                           No. 08-31089                    Charles R. Fulbruge III
                                                                                   Clerk

ARTHUR RAY ROBINSON

                                                      Plaintiff - Appellant
v.

STATE OF LOUISIANA; RICHARD L STALDER; BURL CAIN;
LIEUTENANT KEVIN BENJAMIN; KATHLEEN BLANCO, Governor;
PAULINA SIMS, Classification Official

                                                      Defendants - Appellees




                        Appeal from the United States District Court
                            for the Middle District of Louisiana
                                  USDC No. 3:05-CV-1016


Before JOLLY and DENNIS, Circuit Judges, and BOYLE, District Judge.*
PER CURIAM:**
        Arthur Ray Robinson is an inmate who alleges that prison officials’—and
the former governor’s—deliberate indifference to second-hand smoke in the
Louisiana State Penitentiary violated his right to be free from unreasonable
levels of secondhand smoke. The district court granted summary judgment for



        *
             District Judge, Northern District of Texas, sitting by designation.
        **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 08-31089

all of the defendants in this § 1983 action. We affirm as to all defendants except
Kevin Benjamin.
      Summary judgment is appropriate only when there is no genuine issue of
material fact, and we review de novo. LaBarge Pipe & Steel Co. v. First Bank,
550 F.3d 442, 449 (5th Cir. 2008). To bring an action for unreasonable exposure
to secondhand smoke, a prisoner must show that the level of smoke “pose[s] an
unreasonable risk of serious damage to his future health” and that the defendant
acted with deliberate indifference. Helling v. McKinney, 509 U.S. 25 (1993). He
cannot, however, sue the state for damages under § 1983. Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989).
      Regarding the first prong, Robinson presents affidavits of fellow prisoners
showing consistent exposure to smoke in the prison, and provides evidence of
negative health effects to others and to himself. This presents a genuine issue
of material fact. See Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997).
      As to deliberate indifference, Robinson has met the burden of production
only as to Benjamin. He makes no specific allegations against Blanco and Sims,
and the uncontroverted evidence shows that Stalder’s and Cain’s responses did
not evince deliberate indifference. With respect to Benjamin, he alleges that he
apprised Benjamin that inmates in the nonsmoking dormitory were engaged in
massive violations of the no-smoking rule, which was injurious to the health of
himself and others, and that Benjamin took no action whatsoever to correct the
health violation although it was his obligation to do so.       The magistrate’s
reliance on Lt. Poret’s affidavit that there was a rule that was, to his knowledge,
enforced amounts to a credibility determination that is inappropriate for
summary judgment. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336
F.3d 410, 412 (5th Cir. 2003).     The district court should not have granted
summary judgment in favor of Benjamin. We therefore must remand for further



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                               No. 08-31089

consideration and, if necessary, proceedings regarding the claims against
Benjamin.
                   AFFIRMED in part, REVERSED in part, and REMANDED.




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