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

                                                                            FILED
                                                                          March 25, 2008
                                     No. 07-30153
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk
GETZELL JOHNSON MURRELL, SR

                                                  Plaintiff-Appellant

v.

CARL CASTERLINE; LES PHILLIPS; CINDY PIKE; STEVE AYCOCK;
HARRIS HATCHETT; ROBERT TAPIA; FREDRICK JEFFERSON;
M CANNON; LANE GREMILLION

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:03-CV-257


Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Getzell Johnson Murrell, federal inmate # 87468-011, appeals the district
court’s dismissal of his pro se suit filed pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), following
summary judgment for the defendants. Murrell alleged that the defendants
were deliberately indifferent to his serious medical needs because they exposed




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30153

him to secondhand cigarette smoke while he was incarcerated at the federal
prison in Pollack, Louisiana.
      Murrell argues that the district court erred when it granted the
defendants’ motion for summary judgment because his evidence shows that the
defendants were deliberately indifferent to his medical needs when they refused
to enforce a no smoking policy. This court reviews the grant of a motion for
summary judgment de novo. Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326
(5th Cir. 1996). Summary judgment is appropriate when, considering all of the
allegations in the pleadings, depositions, admissions, answers to interrogatories,
and affidavits, and drawing inferences in the light most favorable to the
nonmoving party, “there is no genuine issue as to any material fact and . . . the
movant is entitled to judgment as a matter of law..” FED. R. CIV. P. 56(c); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). If the moving
party meets his burden of showing that no genuine issue exists, the burden
shifts to the nonmoving party to produce evidence or set forth specific facts
showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256-57 (1986). The nonmovant cannot satisfy his summary
judgment burden with conclusional allegations, unsubstantiated assertions, or
only a scintilla of evidence. Little, 37 F.3d at 1075.
      To succeed on a Bivens cause of action, the plaintiff must demonstrate a
constitutional violation. Garcia v. United States, 666 F.2d 960, 966 (5th Cir.
1982). Murrell’s argument that the district court applied the wrong test to
decide the defendants’ motion for summary judgment is unavailing. To state an
Eighth Amendment violation based on exposure to secondhand smoke, a
prisoner must prove objectively that he is “being exposed to unreasonably high
levels of ETS.” Helling v. McKinney, 509 U.S. 25, 35 (1993). Second, the
                                  No. 07-30153

prisoner must show subjectively that prison authorities demonstrated a
“deliberate indifference” to his plight. Id.
      With regard to Helling’s objective prong, the magistrate judge took judicial
notice of a June 2006 Surgeon General’s report that concluded that there is no
safe level of exposure to secondhand smoke and concluded that Murrell met
Helling’s first prong. Because the defendants did not object to the magistrate
judge’s report and recommendation and did not file a cross-appeal, they are
precluded from appellate review of their argument that Murrell failed to
establish this prong. See Matter of Toyota of Jefferson, Inc., 14 F.3d 1088, 1091
n.1 (5th Cir. 1994).
      Murrell has established that a genuine issue of material fact exists
concerning whether the defendants were subjectively deliberately indifferent to
his plight. Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), abrogated on other
grounds, Booth v. Churner, 532 U.S. 731 (2001); Rochon v. City of Angola,
122 F.3d 319, 320 (5th Cir. 1997). Murrell’s summary judgment evidence shows
that the defendants knew that Murrell was allergic to environmental tobacco
smoke (ETS) and that ETS caused him to have migraines and high blood
pressure. Murrell specifically asked the defendants to enforce the no smoking
policy. His evidence, particularly the sworn statements of two other inmates,
indicates that prison officials essentially looked the other way when inmates
smoked in their cells or in other no smoking areas. He also asked prison officials
to house him with inmates who did not smoke and gave the officials the inmates’
names. The prison responded that it was not feasible to move him. Accordingly,
the district court erred when it granted the defendants’ motion for summary
judgment. Moreover, the defendants are not entitled to qualified immunity. See
Rochon, 122 F.3d at 320.
                                      No. 07-30153

       Murrell also argues that summary judgment was inappropriate because
the defendants did not timely respond to his request for admissions and his
requests should have been deemed admitted. Under Federal Rule of Civil
Procedure 36(a), requests for admissions are deemed admitted if not answered
within 30 days. See Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991) (“Under
Federal Rule of Civil Procedure 36(a), a matter in a request for admissions is
admitted unless the party to whom the request is directed answers or objects to
the matter within 30 days.”). Any matter admitted under Rule 36 is deemed
conclusively established unless the court permits withdrawal of the admission.
FED. R. CIV. P. 36(b).       Further, if the requests for admissions concern an
essential issue, the failure to respond to requests for admission can lead to a
grant of summary judgment against the non- responding party. Dukes v. South
Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985). In this case, the
plaintiff's requests were served March 13, 2006, and responses were not filed
until May 2, 2006. The requests for admissions that defendants failed to timely
respond to concerned the essential issues of this claim. The deemed admissions
conclusively establish that the defendants were deliberately indifferent to
Murrell’s serious medical needs. Thus, the deemed admissions also provide a
basis for concluding that the grant of summary judgment to defendants was
erroneous. See, e.g., Hill v. Breazeale, 197 Fed. Appx. 331, 337 (5th Cir. 2006).1




       1
         Upon remand, under Federal Rule of Civil Procedure 36(b), the district court could,
on motion, permit the deemed admissions to be withdrawn or amended “if it would promote
the presentation of the merits of the action and if the court is not persuaded that it would
prejudice the requesting party in maintaining or defending the action on the merits.” FED.
R. CIV. P. 36(b). However, even if the deemed admissions were set aside, summary judgment
would nonetheless be inappropriate because, as discussed above, the summary judgment
evidence shows that a material issue of genuine fact exists regarding whether the defendants
were deliberately indifferent.
                               No. 07-30153

     The district court’s dismissal of Murrell’s suit is VACATED, and the case
is REMANDED for further proceedings.
