     Case: 09-30018     Document: 00511196862          Page: 1    Date Filed: 08/06/2010




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

                                                 FILED
                                                                           August 6, 2010
                                     No. 09-30018
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MARVIN EDWARD WARE,

                                                   Plaintiff-Appellant

v.

ANTHONY BATSON; RICHARD PUSCH; R L STALDER; STATE OF
LOUISIANA; GEORGE SAVAGE,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:07-CV-1705


Before KING, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Marvin Edward Ware, Texas prisoner # 123116, appeals the summary
judgment in favor of the appellees in his 42 U.S.C. § 1983 action, in which he
alleged that he has been exposed to excessive environmental tobacco smoke. We
granted Ware’s motion for leave to proceed in forma pauperis (IFP) and ordered
the parties to file briefs.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30018

      Ware argues that the district court erred in granting the appellees’
summary judgment motion concerning his environmental tobacco smoke claim.
Ware further asserts that Batson and Savage lied in their affidavits concerning
his housing from February 28 to March 7, 2008, and therefore, they cannot be
trusted. He contends the district court ignored this evidence that Batson and
Savage lied and improperly dismissed his case.
      We review the district court’s grant of summary judgment de novo. See
Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). Summary judgment is
appropriate “if the pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” F ED. R. C IV. P.
56(c)(2). The moving party bears the burden to “demonstrate the absence of a
genuine issue of material fact.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc) (internal quotation marks and citation omitted).
      The district court erred in determining that Ware did not present any
competent summary judgment evidence.             Ware’s complaint constitutes
competent summary judgment evidence. See Hart v. Hairston, 343 F.3d 762, 764
n.1 (5th Cir. 2003) (declarations in verified complaint are competent summary
judgment evidence). In his verified complaint, Ware alleged that: he was housed
in a nonsmoking dorm which did not have a good ventilation system; over half
of the inmates in his dorm and some employees smoked; inmates smoked inside
when the unit’s doors were locked; inmates also smoked in the yard in the front
of the building and smoke went into the dorm through the windows; and Ware
was exposed to smoke in the stands at the ball field, while he walked to and from
the dining hall, and while he worked in the kitchen. He alleged that Sergeants
Washington, Johnson, Shoemaker, and Montgomery, as well as Captain Smith,
also smoked in the building. He alleged that he suffered headaches and red eyes
as a result of exposure to environmental tobacco smoke. Ware also filed a
grievance, alleging that inmates frequently violated the no-smoking policies and

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                                 No. 09-30018

that he suffered headaches due to the exposure to the environmental tobacco
smoke. Warden Wayne Millus denied the grievance because Ware did not
identify the inmates who violated the no-smoking policies. Ware alleged that
Secretary Stalder responded that nothing could be done until August 2009. He
alleged he wrote letters to George Savage and the Warden but he got no
response.
      Ware’s verified complaint provides sufficient summary judgment evidence
to create a genuine issue of material fact concerning whether he was exposed to
unreasonable levels of environmental tobacco smoke and, therefore, to withstand
the defendants’ motion for summary judgment. See Helling v. McKinney, 509
U.S. 25, 28 (1993); see also Whitley v. Hunt, 158 F.3d 882, 888 (5th Cir. 1998),
overruled on other grounds, Booth v. Churner, 532 U.S. 731 (2001); Rochon v.
City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Ware’s verified complaint and
grievance create a genuine issue of material fact concerning whether the
defendants actually enforced the no-smoking policy on a regular basis and, if not,
whether the defendants’ failure to enforce the policy constituted deliberate
indifference to Ware’s exposure to environmental tobacco smoke. See Helling,
509 U.S. at 36. The district court’s reliance on the defendants’ affidavits that the
no-smoking policy was enforced amounted to a credibility determination that
was inappropriate for summary judgment. See Robinson v. Louisiana, 363
F. App’x 307, 308 (5th Cir. 2010). Therefore, the district court erred in granting
a summary judgment on this claim for the defendants. See Little, 37 F.3d at
1075. We VACATE the judgment as to Ware’s environmental tobacco smoke
claim, and REMAND the case for further proceedings concerning this claim.




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