     Case: 13-31140          Document: 00512711172      Page: 1    Date Filed: 07/24/2014




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

                                                                                FILED
                                       No. 13-31140                         July 24, 2014
                                     Summary Calendar                      Lyle W. Cayce
                                                                                Clerk

LOVE ALTONIO BROOKS,

                                                   Plaintiff-Appellant

v.

FREDRICK MENIFEE; KENNETH MONTGOMERY; S. AIRINGTON,

                                                   Defendants-Appellees


                       Appeal from the United States District Court
                          for the Western District of Louisiana
                                 USDC No. 1:07-CV-131


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
          Federal prisoner Love Altonio Brooks (# 45225-053) filed the instant
Bivens 1 suit against officials at USP Pollock, alleging that they were
deliberately indifferent to his right to be free from excessive exposure to
environmental tobacco smoke (ETS) and retaliated against him for



         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.

          1   Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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                                    No. 13-31140

complaining about ETS. Following a bench trial, the district court denied
relief.
          Brooks argues that his due process rights were violated at trial when the
U.S. Marshals denied him the use of a pen and pencil, which he asserts
impeded his ability to take notes during the defendants’ testimony in
preparation for cross-examination. Because he makes no allegation that he
was harmed as a result, the claim fails. See Simpson v. Ortiz, 995 F.2d 606,
609 (5th Cir. 1993).
          The majority of Brooks’s appellate arguments are devoted to the
contention that the district court’s denial of relief on his deliberate-indifference
claim was error. First, he urges that the district court misapplied the objective
prong of the two-prong test set forth in Helling v. McKinney, 509 U.S. 25 (1993),
by requiring him to establish that the ETS to which he was exposed was
pervasive. He is incorrect. See id. at 29-30, 35; see also Richardson v. Spurlock,
260 F.3d 495, 499 (5th Cir. 2001) (finding no Eighth Amendment violation
based on intermittent exposure to ETS).           Second, Brooks argues that the
district court erred in refusing to consider Murrell v. Casterline, 307 F. App’x
778 (5th Cir. March 25, 2008), and the inmate affidavits submitted therein.
However, he does not show that the case involved the same time frame or
housing unit as his case and therefore fails to demonstrate any error on the
district court’s part in refusing to consider Murrell. Third, Brooks challenges
the district court’s finding that his housing unit was not continuously smoke-
filled and that he was not exposed to unreasonably high levels of ETS. The
district court’s finding is not clearly erroneous. See DeMoss v. Crain, 636 F.3d
145, 149 (5th Cir. 2011). To the extent that Brooks complains that the district
court should have credited his testimony over the defense witnesses’, this court




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                                 No. 13-31140

will not overturn the district court’s credibility determinations. See Canal
Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).
      The record supports the district court’s conclusion that Brooks failed to
establish the objective prong of a deliberate-indifference claim under Helling.
See 509 U.S. at 35-36; see also Richardson, 260 F.3d at 499. That being so, we
need not address the numerous arguments Brooks raises challenging the
district court’s findings with respect to the subjective element. See Helling,
509 U.S. at 35.
      Brooks also states that the denial of relief on his retaliation claim was
error. However, he briefs no argument challenging the district court’s reasons
for denying the retaliation claim and has thus abandoned the argument. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Additionally, Brooks contends that the district court was biased against
him, citing evidentiary rulings that did not go in his favor, as well as the fact
that his claims were ultimately denied. He has not demonstrated that the
district court had a personal, extrajudicial bias against him, and his
conclusional allegation of bias stemming from the court’s adverse rulings is not
sufficient to support a finding of bias. See Liteky v. United States, 510 U.S.
540, 555 (1994); see also United States v. Mizell, 88 F.3d 288, 299-300 (5th Cir.
1996).
      The district court’s judgment is AFFIRMED.




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