                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 27, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40400
                           Summary Calendar



GETZELL JOHNSON MURRELL, SR.,

                                      Plaintiff-Appellant,

versus

ERNEST V. CHANDLER, Warden; MARIE J. CARTER, Administrative
Warden; AL HAYNES, Associate Warden; RONALD G. THOMPSON,
Regional Director; O. IVAN WHITE, Assistant Regional
Director; ET AL.,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:01-CV-184
                       --------------------

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Getzell Johnson Murrell, federal inmate # 87468-011, appeals

the dismissal of his suit filed pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Murrell’s argument that he was not required to exhaust his

administrative remedies because he sought only monetary damages

is unavailing.     See Booth v. Churner, 532 U.S. 731, 741 (2001);



     *
       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this opinion should not be published and is not precedent except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. 04-40400
                                  -2-

Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001); 42

U.S.C. § 1997e.   Murrell’s argument that the district court erred

when it determined that his claims of denial of access to the

courts and denial of an adequate law library were time-barred

lacks a factual predicate.    The district court did not rule that

those claims were time-barred.

     Murrell argues that the district court erred when it

dismissed Murrell’s equal protection claim relative to his

longevity wages for failure to state a claim for which relief

could be granted.   The dismissal was not error because Murrell’s

equal protection claim was not based on discriminatory treatment

due to some personal or class characteristic.    See Thompson v.

Patteson, 985 F.2d 202, 207 (5th Cir. 1993); see also 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A.

     Murrell also argues that the district court erred when it

dismissed his claim that prison officials violated his Eighth

Amendment rights against cruel and unusual punishment by exposing

him to environmental tobacco smoke (ETS).   In Helling v.

McKinney, 509 U.S. 25, 35-36 (1993), the Supreme Court addressed

the issue of exposure to ETS and held that the prisoner stated a

cause of action under the Eighth Amendment when he alleged that

prison officials were deliberately indifferent to his serious

medical needs by exposing him to ETS which posed an unreasonable

risk to his health.   With respect to its qualified-immunity

analysis, the Supreme Court noted that determining whether
                             No. 04-40400
                                  -3-

conditions of confinement violate the Eighth Amendment “requires

a court to assess whether society considers the risk that the

prisoner complains of [ETS] to be so grave that it violates

contemporary standards of decency to expose anyone unwillingly to

such a risk.”   Id. at 36.

     In Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir.

1997) this court recognized that a prisoner states an Eighth

Amendment claim if he alleges that he was exposed to ETS for a

sustained time, even if the ETS had not already harmed his

health.   To the extent that Murrell alleged that his future

health was harmed by prolonged exposure to ETS and that prison

officials were deliberately indifferent to his health, he states

a claim for which relief may be granted.    See Helling, 509 U.S.

at 37; Rochon, 122 F.3d at 320; Whitley v. Hunt, 158 F.3d 882,

888 (5th Cir. 1998).   Accordingly, the portion of the district

court’s judgment dismissing Murrell’s Eighth Amendment claim

relative to his exposure to ETS for failure to state a claim for

which relief may be granted is VACATED, and the case is REMANDED

for appropriate proceedings.    The remainder of the district

court’s judgment is AFFIRMED.

     AFFIRM IN PART, VACATE AND REMAND IN PART.
