                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    ________________________           FILED
                                              U.S. COURT OF APPEALS
                           No. 11-11800         ELEVENTH CIRCUIT
                                                 OCTOBER 25, 2011
                       Non-Argument Calendar
                                                     JOHN LEY
                     ________________________          CLERK

               D.C. Docket No. 4:08-cv-00250-WTM-GRS

DAVID DWAYNE CASSADY,

                                                             Plaintiff-Appellee,

                                versus

JAMES E. DONALD,
COMMISSIONER,
GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN,
COASTAL STATE PRISON,
DEPUTY WARDENS,
COASTAL STATE PRISON,

                                                     Defendants-Appellants.

                     ________________________

              Appeal from the United States District Court
                 for the Southern District of Georgia
                    _________________________

                          (October 25, 2011)

Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:

      James Donald, the former Commissioner of the Georgia Department of

Corrections; the current Commissioner of that entity; and the Warden and two

Deputy Wardens of Coastal State Prison (collectively “Prison Officials”) appeal

the district court’s denial of their motion for summary judgment on David Dwayne

Cassady’s 42 U.S.C. § 1983 claim. In that claim, Cassady alleged that the Prison

Officials were deliberately indifferent to his serious medical needs by continually

exposing him to high levels of second-hand tobacco smoke in violation of the

Eighth Amendment. In their summary judgment motion, the Prison Officials

argued that they were entitled to qualified immunity on Cassady’s claim. The

district court concluded that the Prison Officials were not entitled to summary

judgment on the basis of qualified immunity. After thorough review, we affirm.

      The Prison Officials argue that the district court erred in finding that they

were not entitled to qualified immunity. “We review de novo the denial of a

motion for summary judgment based on qualified immunity.” Roberts v.

Spielman, 643 F.3d 899, 902 (11th Cir. 2011) (quotation marks omitted). “We

view the facts in the light most favorable to [Cassady], drawing all reasonable

inferences in [his] favor.” Id. (quotation marks omitted). We then determine

“whether the defendant is entitled to qualified immunity under that version of the

                                          2
facts.” Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1327 (11th Cir. 2006)

(quotation marks omitted). Summary judgment is appropriate only if “the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      We must consider “(1) if the facts, construed in the light most favorable to

the plaintiff, show that a constitutional right has been violated; and (2) whether the

right violated was clearly established.” Roberts, 643 F.3d at 904 (quotation marks

omitted). “Both elements of this test must be satisfied for an official to lose

qualified immunity.” Id. (quotation marks omitted); see also Pearson v. Callahan,

555 U.S. 223, 232, 129 S. Ct. 808, 815–16 (2009).

      To establish a violation of the Eighth Amendment due to exposure to

second-hand smoke, or environmental tobacco smoke (“ETS”), a prisoner must

show that the defendants have, “with deliberate indifference, exposed him to

levels of ETS that pose an unreasonable risk of serious damage to his future

health.” Helling v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475, 2481 (1993). To

establish deliberate indifference, “the prisoner must prove three facts: (1)

subjective knowledge of a risk of harm; (2) disregard of that risk; and (3)

[c]onduct that is more than mere negligence.” Brown v. Johnson, 387 F.3d 1344,

1351 (11th Cir. 2004). The prisoner must establish that “he himself is being

                                          3
exposed to unreasonably high levels of ETS” (the objective element) and “that

prison authorities demonstrated a ‘deliberate indifference to his plight’” (the

subjective element). Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005).

       Genuine issues of material fact preclude summary judgment for the Prison

Officials on the issue of whether their alleged conduct violated Cassady’s

constitutional rights. Cassady established that he was exposed to unreasonable

levels of second-hand smoke.1 Cassady averred in his verified complaint and

submitted evidence in support thereof that while he was an inmate at Coastal State

Prison, inmates routinely smoked in common areas indoors and that the Prison

Officials “knew [his] roommate was a chronic smoker, who smoked (4) packs of

cigarettes in the [cell he shared with Cassady] daily.” See Helling, 509 U.S. at 28,

35-36, 113 S. Ct. at 2478, 2481-82 (holding that plaintiff stated a valid Eighth

Amendment claim on which relief could be granted when he alleged that he was

assigned to a cell with another inmate who smoked five packs of cigarettes a day);

see also Atkinson v. Taylor, 316 F.3d 257, 268 (3d Cir. 2003) (denying qualified

       1
          “When we review a district court’s denial of a defendant’s motion for summary
judgment on qualified immunity grounds, we take the ‘facts’ in the light most favorable to the
plaintiff and determine the legal issue of whether the plaintiff’s ‘facts’, if proven, show that the
defendant violated clearly established law. We, however, have repeatedly stressed that the
‘facts’, as accepted at the summary judgment stage of the proceedings, may not be the ‘actual’
facts of the case.” Priester v. City of Rivera Beach, Fla., 208 F.3d 919, 926 n.3 (11th Cir. 2000)
(internal citation omitted). So, when we say Cassady has “established” an element of his claim,
that element is “established” only for the present, summary judgment purposes.

                                                  4
immunity when inmate alleged that he was “exposed, with deliberate indifference,

to constant smoking in his cell for over seven months”).

      Cassady’s evidence at summary judgment also established that the Prison

Officials were deliberately indifferent to his exposure to unreasonable levels of

second-hand smoke. Inmates submitted affidavits stating that they routinely

smoked indoors but prison officials never punished them for doing so. In

addition, although the prison sold cigarettes and made lighters accessible to the

inmates, the inmates swore in affidavits that the Prison Officials never allowed

them to take outdoor smoke breaks. Other inmates swore that indoor smoking was

a daily occurrence but that they had never witnessed a prison official disciplining

an inmate for smoking indoors. Although during the approximately five months in

which Cassady resided in that prison, the Prison Officials wrote eighty-seven

disciplinary reports for indoor smoking, numerous affidavits from inmates in the

record support Cassady’s allegation that many inmates frequently violated the

policy against indoor smoking with impunity.

      Cassady also submitted sufficient evidence to establish that the Prison

Officials were subjectively aware of his exposure to unreasonable levels of

second-hand smoke and the health risks associated with such exposure. Cassady

wrote letters, filed grievances, and spoke with the Prison Officials to inform them

                                         5
of his exposure to second-hand smoke and his concerns of the negative effect on

his health. Cassady also gave the Prison Officials reports, including one from the

Surgeon General, which concluded that second-hand smoke is harmful and causes

lung cancer and coronary artery disease.

      Further, Cassady submitted evidence that he was particularly susceptible to

second-hand smoke because of his asthma, or reactive airway disease. The Prison

Officials conceded at summary judgment that “ETS can trigger asthmatic episodes

by irritating chronically inflamed bronchial passages of people with asthma.”

      Finally, we reject the Prison Officials’ argument that it is not clearly

established that their alleged conduct exposing Cassady to ETS would violate the

Eighth Amendment. “In determining whether a constitutional right was clearly

established at the time of violation, the relevant, dispositive inquiry is whether it

would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Roberts, 643 F.3d at 904–05 (quotation marks omitted).

Both the Supreme Court and this Court have held that a prisoner can state a cause

of action under the Eighth Amendment for exposure to second-hand smoke by

“alleging that prison officials have, with deliberate indifference, exposed him to

levels of ETS that pose an unreasonable risk of serious damage to his future

health.” Kelley, 400 F.3d at 1284 (quoting Helling, 509 U.S. at 35, 113 S. Ct.

                                           6
2475). Moreover, in Kelley we observed that the Supreme Court has “directly

addressed” and “provided clear guidance” on Eighth Amendment claims based on

exposure to second-hand smoke. See 400 F.3d at 1284. We applied that guidance

in Kelley, in which we held that the district court properly granted summary

judgment when, unlike in Helling, the inmate did not allege that his cellmate was a

smoker; inmates were allowed to take outdoor smoke breaks every two hours; and

under the facility’s policy against indoor smoking, any inmate caught smoking

inside would be disciplined. Id. at 1285. In Kelley, the only evidence the inmate

provided was “personal observations of smoke inside the prison” and his personal

opinion that the ventilation in the prison was inadequate. Id.

       In contrast, here Cassady submitted multiple affidavits from other inmates

to corroborate his allegations that: his cellmate smokes heavily in his cell on a

daily basis; inmates frequently smoke indoors; the prison does not allow outdoor

smoke breaks; and prison officials do not punish all inmates they catch smoking

indoors.2 We therefore conclude that Cassady established that the Prison

       2
          The Prison Officials argue that they are entitled to qualified immunity on Cassady’s
claim because Cassady at times purchased cigarettes from the prison on behalf of other inmates,
including his cellmate. The fact that Cassady allegedly purchased cigarettes for other inmates
does not change the facts pertinent to our analysis. It does not alter the fact that Cassady was
exposed to high levels of second-hand, indoor smoke while incarcerated and unable to leave the
prison nor the fact that Prison Officials were aware that inmates smoked indoors and did not
always punish inmates for doing so. See Helling, 509 U.S. at 35, 113 S. Ct. at 2481 (explaining
that for an Eighth Amendment ETS claim, a prisoner must show that the defendants have “with

                                                7
Officials’ conduct violated his clearly established rights under the Eighth

Amendment.

       For these reasons, we affirm the district court’s denial of the Prison

Officials’ motion for summary judgment on the basis of qualified immunity.3

       AFFIRMED.




deliberate indifference, exposed him to levels of ETS that pose and unreasonable risk of serious
damage to his future health”); accord Kelley, 400 F.3d at 1284.
       3
           We need not address the Prison Officials’ argument that they established that they were
acting within their discretionary authority. Even if the Prison Officials established before the
district court that they were acting within their discretionary authority, we affirm the district
court’s denial of summary judgment on the basis that Cassady established that the Prison
Officials violated his clearly established rights under the Eighth Amendment.

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