                                                                FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit

                 UNITED STATES COURT OF APPEALS             April 16, 2012
                                                        Elisabeth A. Shumaker
                        FOR THE TENTH CIRCUIT               Clerk of Court


CLEVELAND JOHNSON, JR.,

            Plaintiff-Appellant,

v.                                                  No. 11-1381
                                        (D.C. No. 1:10-CV-02235-REB-CBS)
HARLEY G. LAPPIN, Director,                          (D. Colo.)
Federal Bureau of Prisons (F.B.O.P.);
MICHAEL NALLEY (misspelled in
the original caption as “Michael
Nally”), Regional Director, F.B.O.P.;
HARRELL WATTS, Administrator,
National Inmates Appeals, F.B.O.P.;
RENE GARCIA, Warden, Federal
Correctional Institution (FCI),
F.B.O.P.; C. BELL, Safety Manager,
FCI-Englewood, F.B.O.P.;
LT. WHITE, Corrections Officer-Lt.
FCI-Englewood, F.B.O.P.;
LT. CLINE, Corrections Officer-Lt.
FCI-Englewood, F.B.O.P.;
LT. KIDWILER, Corrections
Officer-Lt. FCI-Englewood, F.B.O.P.;
OFFICER HENDRICKS, Unicor-Staff
Member, FCI-Englewood, F.B.O.P.;
OFFICER LOCKE, Unicor-Staff
Member, FCI-Englewood, F.B.O.P.;
OFFICER VIGIL, Unicor-Staff
Member, FCI-Englewood, F.B.O.P.;
OFFICER CURRAN, Corrections
Officer, FCI-Englewood, F.B.O.P.;
OFFICER ILLARAZA, Corrections
Officer, FCI-Englewood, F.B.O.P.;
OFFICER W. LACY, Corrections
Officer, FCI-Englewood, F.B.O.P.;
OFFICER RUTSAY, (REC) Officer,
FCI-Englewood, F.B.O.P.; OFFICER
    WALKER, (REC) Officer,
    FCI-Englewood, F.B.O.P.; OFFICER
    N. WILLIAMS, Supervisor (Paint
    Shop) FCI-Englewood, F.B.O.P.;
    OFFICER PROFITT, Corrections
    Officer, FCI-Englewood, F.B.O.P.;
    OFFICER MCMURTREY, Corrections
    Officer, FCI-Englewood, F.B.O.P.;
    OFFICER JANSSEN, Corrections
    Officer, FCI-Englewood, F.B.O.P.;
    OFFICER J. COOPER, Corrections
    Officer, FCI-Englewood, F.B.O.P.;
    OFFICER KOUGH, Corrections
    Officer, FCI-Englewood, F.B.O.P.,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.



        Plaintiff Cleveland Johnson, Jr., a federal prisoner currently incarcerated at

a correctional facility in California, brought this Bivens action 1 claiming that his



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
     See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).

                                          -2-
exposure to environmental tobacco smoke (ETS) while at FCI-Englewood in

Colorado violated his Eighth Amendment rights. Defendants moved for dismissal

on various grounds. Before the motion was resolved, Mr. Johnson voluntarily

dismissed Bureau of Prisons Director Harley G. Lappin, Regional Director

Michael Nalley, and Administrator Harrell Watts. On the magistrate judge’s

recommendation, the district court subsequently dismissed the rest of the case

“for failure to state a claim on which relief may be granted and on the basis of

qualified immunity.” 2 R. Vol. 1 at 227. On de novo review, see Kan. Penn

Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (failure to state a

claim); Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (qualified

immunity), we affirm for the reasons explained below.

            COMPLAINT, PROCEEDINGS, AND DISPOSITION
                    IN THE DISTRICT COURT

      The essence of Mr. Johnson’s complaint is that prison supervisors failed to

enforce and prison staff (including many of the defendants) consequently violated

Program Statement 1640.04, which provides that staff who smoke “must remain at

least 25 feet from any building entrance/exit,” R. Vol. 1 at 34. Mr. Johnson

alleged that prison “[o]fficers use the steps-porch of the housing units as their

‘smoking area.’” Id. at 18. As a result, he allegedly was “forced to inhale second



2
     The district court dismissed all claims without prejudice. R. Vol. 1 at 228.
Defendants have not cross-appealed this aspect of the court’s disposition.

                                         -3-
hand smoke nearly every time he exit[ed], or enter[ed] his housing unit.” Id..

Mr. Johnson alleged that he has asthma and that this exposure to ETS “ha[s]

aggravated this condition causing [him] to be greatly concerned about his present

and future health.” Id. at 28. Specifics in this regard were lacking, however;

indeed, Mr. Johnson requested that the district court “[a]fford [him] a complete

physical examination to detect any possible illness from his continued exposure to

the second hand ‘smoke.’” Id. at 23. He also sought damages and injunctive

relief directing the prison to comply with Program Statement 1640.04 and to

investigate past violations.

      Defendants moved to dismiss, arguing inter alia that the complaint failed to

state a constitutional violation and that they were entitled to qualified immunity.

In their view, Mr. Johnson’s claim failed under both the objective and subjective

prongs of the governing Eighth Amendment analysis. See generally Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (discussing objective prong concerned with

seriousness of harm or need at issue and subjective prong concerned with

defendant’s culpable state of mind). That is, they contended that the level of ETS

to which Mr. Johnson had been exposed did not “unreasonably endanger[]” his

health “contrary to current standards of decency,” nor had they been aware of and

“deliberately indifferent” to such a risk. Helling v. McKinney, 509 U.S. 25, 35

(1993) (discussing Eighth Amendment standards in connection with claim based

on exposure to ETS). Mr. Johnson filed a response insisting he had sufficiently

                                         -4-
alleged he was subjected to a serious health risk on a daily basis by defendants’

violations of Program Statement 1640.04--violations he argued were conceded

when, in response to his grievance, the warden ordered lines painted to designate

the limits of the staff smoking areas. He also noted that a recent Surgeon General

report had declared that there is no risk-free level of exposure to tobacco smoke.

Finally, at certain points he suggested that the program statement may itself be an

improper deviation from a more general BOP prohibition on smoking in federal

facilities. Defendants filed a brief reply aptly emphasizing that a violation of

such prison policies will not support an Eighth Amendment claim unless the

conduct involved deviates from the applicable constitutional standard. See Porro

v. Barnes, 624 F.3d 1322, 1329 (10th Cir. 2010).

      Shortly thereafter, Mr. Johnson was transferred to FCI-Lompoc in Lompoc,

California. The magistrate judge conducted a status conference the very next day

(Mr. Johnson would later claim this course of events was deliberately orchestrated

to leave him at a disadvantage, lacking legal materials that had not yet reached

him at Lompoc). The magistrate judge ordered all discovery stayed pending

resolution of defendant’s motion to dismiss.

      Two months later, the magistrate judge issued a recommendation that the

motion be granted. The magistrate judge noted that Helling--which held that a

plaintiff celled with a prisoner who smoked five packs of cigarettes a day stated a

potential claim for exposure to “unreasonably high levels of ETS,” 509 U.S. at 35

                                         -5-
(emphasis added)--did not establish a constitutional right to a smoke-free prison.

See, e.g., Powers v. Snyder, 484 F.3d 929, 932 (7th Cir. 2007) (noting, after

Helling, that “[a] prison is not required to provide a completely smoke-free

environment”); Scott v. Dist. of Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998)

(“Helling did not read the Eighth Amendment as mandating smoke-free

prisons.”). Rather, ETS exposure is actionable only when substantial enough to

have consequences (future risk or present harm) rising to a level of constitutional

significance. As emphasized by defendants, for future risk Helling indicates that

an “unreasonable risk of serious damage” to health “contrary to current standards

of decency” is required. 509 U.S. at 35. Against this legal backdrop, the

magistrate judge assessed the factual allegations of the complaint as follows:

             Mr. Johnson does not allege that he was constantly exposed
      to ETS while inside his cell or in a similar enclosed area.
      Mr. Johnson’s alleged exposure to ETS occurred outdoors when he
      was exiting or entering his housing unit. Mr. Johnson’s alleged log
      of the dates and times he was exposed sets forth only brief occasions
      of exposure. The total exposure alleged in Mr. Johnson’s log
      amounts to only a few brief occasions of exposure per week over
      a period of six months. Mr. Johnson does not specifically allege
      the amount of his exposure to ETS. [3] Even accepting all of
      Mr. Johnson’s allegations as true, the level of exposure to ETS that
      he alleges simply cannot rise to a level of exposure which could be
      found to be unreasonably high. . . . Mr. Johnson’s allegations do not
      supply a factual predicate to support a plausible claim that the


3
      We note that the detailed log of staff smoking violations set out in the
complaint reflects incidents usually involving lone staff members, sometimes two,
and on rare occasions three; there is no indication of staff congregating in
numbers to smoke in prohibited areas. See R. Vol. 1 at 25-27.

                                         -6-
      conditions of his confinement have violated his constitutional rights.
      Nor do Mr. Johnson’s allegations adequately state that Defendants
      with deliberate indifference exposed him to levels of ETS that pose
      an unreasonable risk of serious damage to his future health.

R. Vol. 1 at 113-14 (quotations and citations omitted). Based on that assessment,

the magistrate judge concluded both that the Eighth Amendment claim should be

dismissed, id. at 114, and that defendants were entitled to qualified immunity, id.

at 125. The magistrate judge also recommended that any claims for injunctive

relief be dismissed as moot in light of the fact that Mr. Johnson was no longer

housed at FCI-Englewood. See Jordan v. Sosa, 654 F.3d 1012, 1027-28

(10th Cir. 2011).

      As it happened, Mr. Johnson had submitted a motion to amend that got filed

the same day as the magistrate judge’s recommendation. In the motion he sought

to add some factual allegations regarding present harm from his ETS exposure,

claiming that he “has been fatigued and had blurry vision and headaches” and “is

constantly suffering from various colds and mild headaches as well as constant

runny nose and allergies which he had not suffered from until the exposure from

the ETS while at the FCI-Englewood.” R. Vol. 1 at 205. The magistrate judge

treated these additional allegations as a supplemental response to the motion to

dismiss, but did not alter his recommendation. Id. at 208, 210. Mr. Johnson also

filed objections to the recommendation, in which he argued that the magistrate

judge had misapplied the governing law to reject his Eighth Amendment claim


                                         -7-
and ignored his pleadings, which had included the critical (but unaddressed) fact

that he suffers from asthma. 4 Moreover, contrary to the mild symptoms alleged in

his pleadings, he now referred to “excru[c]iating pain” associated with asthma

attacks. Id. at 216-17. He also complained that his out-of-state transfer, followed

immediately by a status conference, was an orchestrated effort by defendants and

the magistrate judge to undermine his ability to support his case.

      The district court adopted the magistrate judge’s recommendation, finding

it “detailed and well-reasoned” and Mr. Johnson’s objections “imponderous and

without merit.” Id. at 226. Although the court did not mention Mr. Johnson’s

alleged asthma, it did acknowledge the supplemental allegations in Mr. Johnson’s

motion to amend relating “to plaintiff’s symptoms as a result of exposure to

environmental tobacco smoke,” concluding that these were “insufficient to state a

cognizable Eighth Amendment claim.” Id. at 226 n.2. We agree. An actionable

claim based on conditions of confinement requires serious harm, not mere

discomfort, DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir. 2001) (applying

standard from Farmer, 511 U.S. at 834), and symptoms of the sort alleged by

Mr. Johnson fall short, see, e.g., Richardson v. Spurlock, 260 F.3d 495, 498



4
      Defendants argue that Mr. Johnson’s objections failed to preserve any
substantive challenge to the rationale for dismissal of his ETS claim. We
disagree; he not only objected generally to the magistrate judge’s analysis of the
claim but specifically focused on a critical relevant fact for which that analysis
did not account.

                                        -8-
(5th Cir. 2001); Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999); Scott,

139 F.3d at 943; Durham v. Hood, 412 F. App’x 127, 128-30 (10th Cir. 2011).

Finally, the district court rejected Mr. Johnson’s complaint about his allegedly

orchestrated transfer to California as “the rankest speculation,” and aptly noted

that any lack of preparation for the ensuing status conference did not prejudice

Mr. Johnson because the motion to dismiss was “determined based on the facts

alleged in the complaint, which the magistrate judge properly considered in

making his recommendation.” R. Vol. 1 at 226 n.2.

               RATIONALE FOR AFFIRMANCE ON APPEAL

      As should be evident from our presentation of the analysis of the magistrate

judge and the district court, we agree with essentially everything they said. There

is, however, one important point--Mr. Johnson’ alleged asthma--on which they

were silent, and it makes this a somewhat closer case than they indicated. We

noted earlier the general principle that “[a] prison is not required to provide a

completely smoke-free environment,” Powers, 484 F.3d at 932, but here it is

necessary for us to address the following proviso: “except for prisoners who have

asthma or some other respiratory condition that even a low level of ambient smoke

would aggravate,” id. (emphasis added). See Reilly v. Grayson, 310 F.3d 519,

521 (6th Cir. 2002) (rejecting defendants’ contention that ETS claim rested on

unestablished general right to smoke-free environment where prisoner had “a




                                         -9-
serious medical condition that was exacerbated by exposure to second-hand

smoke” and medical personnel had recommended a smoke-free placement).

      We note that the failure of the magistrate judge and district court to focus

on the asthma allegation was understandable under the circumstances. There was

only one passing reference to asthma, with no allegation of symptoms tied to

ETS, in the ten pages setting out the cause of action asserted in his complaint, see

R. Vol. 1 at 28, and no mention of the condition in his motion to amend, which

contained his only specific allegations of ETS-related symptoms. 5 While he did

belatedly interject a new allegation of asthma pain in his objections to the

magistrate judge’s recommendation, our precedent does not permit litigants to

engage in such sandbagging tactics. See Abdulhaseeb v. Calbone, 600 F.3d 1301,

1310 (10th Cir. 2010) (following Marshall v. Chater, 75 F.3d 1421, 1426-27

(10th Cir. 1996), to hold matters raised for the first time in objections to

recommendation are deemed waived).

      While the presence of a respiratory condition like asthma is certainly

relevant to an ETS claim, it does not mean minimal levels of ambient smoke such

as those alleged here necessarily state a constitutional claim. In this regard, we

note there was no allegation of any medical order for Mr. Johnson to be placed in



5
       The administrative grievance materials attached to the complaint also do
not refer to Mr. Johnson’s alleged asthma. Defendants have not, however, argued
that the point was lost through failure to exhaust.

                                         -10-
a smoke-free environment, as was the case in Reilly, cited above. Asthma

conditions vary and courts have held that some asthmatic prisoners may even be

permissibly celled with smokers, absent medical orders to the contrary. See, e.g.,

Oliver v. Deen, 77 F.3d 156, 160-61 (7th Cir. 1996).

      We need not engage in precise constitutional line-drawing to decide this

case. Given the lack of definitive precedent involving the conditions at issue

here, where fleeting and relatively minor exposure to outdoor smoke is claimed

by a prisoner who alleged asthma but no ETS-related medical orders, we exercise

our discretion under Pearson v. Callahan, 555 U.S. 223, 236 (2009), to rest our

disposition on the second prong of the qualified immunity analysis. That is,

whether or not the alleged facts might show the violation of a constitutional right,

“the right at issue was [not] clearly established at the time of defendant[s’]

alleged misconduct.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011)

(quotation omitted). There is no “Supreme Court or Tenth Circuit decision on

point,” nor is “the clearly established weight of authority from other courts”

squarely in favor of the Eighth Amendment violation alleged. Id. (quotation

omitted). We therefore hold that the district court properly dismissed the

complaint on the basis of qualified immunity, although we rely on a somewhat

different rationale. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1135 n.1

(10th Cir. 2000) (“We may affirm the district court’s dismissal of an action on a

different ground if the record is sufficient to allow conclusions of law.”);

                                         -11-
see, e.g., Gomes v. Wood, 451 F.3d 1122, 1124 (10th Cir. 2006) (affirming on

basis of qualified immunity analysis not relied on by district court).

      Finally, there are two collateral points raised by Mr. Johnson that may be

disposed of summarily. First, he seeks to bolster his Bivens claim by citing to the

BOP duties summarized in 18 U.S.C. § 4042, which include providing for the care

and protection of prisoners. This argument is raised for the first time on appeal

and we decline to consider it. See Koch v. City of Del City, 660 F.3d 1228,

1237 n.4 (10th Cir. 2011). 6 Second, Mr. Johnson notes he requested early release

as an alternative remedy for his ETS exposure, and now--apparently conceding

that the request was categorically inapt in this Bivens conditions-of-confinement

case--he argues that the district court should have construed this aspect of the

case as a habeas petition and exercised its discretion to transfer it to an

appropriate federal venue. There is no obligation to keep meritless claims alive

through transfer to another court, see Haugh v. Booker, 210 F.3d 1147, 1150-51

(10th Cir. 2000), and a habeas petition seeking early release as a remedy for the

ETS exposure here would have been frivolous.




6
       We do note, however, that courts have held there is no right of action
directly under § 4042, see Harper v. Williford, 96 F.3d 1526, 1528 (D.C. Cir.
1996) (citing cases), and the duties it refers to are relevant to negligence claims,
not constitutional claims like Mr. Johnson’s, id.

                                         -12-
       The judgment of the district court is AFFIRMED. Appellant’s motion for

leave to proceed in forma pauperis on appeal is GRANTED. We remind him of

his obligation under 28 U.S.C. § 1915(b) to continue making partial payments

until the entire fee is paid.


                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




                                      -13-
