                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   April 8, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-31051
                          Summary Calendar



DENAUD EGANA,

                                     Plaintiff-Appellant,

versus

DEPARTMENT OF CORRECTIONS; ET AL.,

                                     Defendants,

A. MAYEUX, Nurse; JAMES LEBLANC,

                                     Defendants-Appellees.


                       --------------------
           Appeal from the United States District Court
               for the Middle District of Louisiana
                       USDC No. 01-CV-649-A
                       --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Denaud M. Egana, Louisiana prisoner # 410663, who was

formerly incarcerated at the Dixon Correctional Institute,

appeals from the dismissal of his claims against Warden James

LeBlanc for failure to state a claim on which relief may be

granted.   Egana contends that his right against cruel and unusual


     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-31051
                                -2-

punishment was violated because he was exposed to unusually high

levels of environmental tobacco smoke (ETS); because his transfer

request to a nonsmoking dormitory was denied; and because he was

not transferred to a nonsmoking area despite Warden LeBlanc’s

assurance that he would be considered for a transfer once

nonsmoking accommodations became available.    According to Egana,

nonsmoking accommodations became available in the two years

following the denial of his grievances, yet he was not

transferred.

     Egana failed to state a claim that Warden LeBlanc was

deliberately indifferent for denying Egana’s transfer to a

nonsmoking area due to space unavailability in September 1999.

Helling v. McKinney, 509 U.S. 25, 36 (1993).    As to that claim,

the district court’s judgment is AFFIRMED.

     Egana did allege that space had become available since

his transfer request was rejected and that he had not been

transferred.   He alleged that he was confined in a dormitory of

about 66 men, more than half of whom were smokers, that ETS was

abundant and concentrated, that he was a nonsmoker with asthma,

and that he had suffered lung difficulties due to his ETS

exposure.   It is conceivable that Egana was exposed to an

unreasonably high level of ETS.   Helling, 509 U.S. at 35.

     Both Warden LeBlanc and the official who addressed Egana’s

third-step response indicated that Egana would be considered for

a transfer once space became available in a nonsmoking area.    The
                           No. 02-31051
                                -3-

language used in the responses to Egana’s grievances can be read

as suggesting that prison officials would act affirmatively to

have Egana transferred.   It is unclear from the record whether

Warden LeBlanc is personally responsible for ensuring that

transfers occur in such a circumstance, see Thompkins v. Belt,

828 F.2d 298, 303-04 (5th Cir. 1987) (supervisory liability), or

whether he should have notified the responsible official that

Egana was to be moved when space became available.

     It is conceivable that Egana can prove that Warden LeBlanc

acted unreasonably and with deliberate indifference by failing to

have him moved when and if space became available in a nonsmoking

area, particularly if Egana has asthma.   Helling, 509 U.S. at 36.

As to Egana’s claim that Warden LeBlanc violated his Eighth

Amendment right by failing to have him transferred, the district

court’s judgment dismissing that claim for failure to state a

claim is VACATED AND REMANDED.

     AFFIRMED in part; VACATED in part; and REMANDED.
