                      UNITED STATES COURT OF APPEALS
Filed 12/10/96
                                   TENTH CIRCUIT



 RONALD DEL RAINE,

          Plaintiff - Appellant,
 v.
                                                       No. 96-3129
 MIKE W. NELSON, Foreman,                        (D.C. No. 95-3124-RDR)
 UNICOR, U.S. Penitentiary                              (D. Kan.)
 Leavenworth,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and HENRY, Circuit Judges. **


      Plaintiff - Appellant Ronald Del Raine (“Del Raine”) is serving an

aggregate prison term of 209 years in the United States Penitentiary,

Leavenworth, Kansas (“USP”). The facts of this case arise from Del Raine’s

employment in the Print Factory at USP, where he works under the defendant,


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.
Michael W. Nelson. On January 24, 1995, after finding Del Raine asleep during a

scheduled break, Nelson ordered Del Raine to take his breaks only in the

designated break room. The designated break room is used by smokers, and Del

Raine claims to be allergic to second hand smoke. Del Raine filed a civil rights

action in the United States District Court for the District of Kansas claiming his

Eighth Amendment right to be free from cruel and unusual punishment was

violated when he was forcibly exposed to passive smoke despite defendant’s

knowledge of his medical condition. The District Court granted Nelson’s motion

for summary judgment on two grounds: first, Nelson allowed Del Raine to leave

the designated break room when smokers were present; second, Del Raine could

not show an actual medical injury resulting from his exposure to second hand

smoke. Del Raine now appeals. 1

      We disagree with the district court’s holding that there was no evidence

indicating that Del Raine was forced to stay in the designated break room when

smokers were present; however, we agree with the district court’s determination




      1
        We grant Del Raine’s request to proceed in forma pauperis on appeal,
notwithstanding the district court’s denial of this request. Because Del Raine
filed his notice of appeal on August 11, 1996, prior to the enactment of the Prison
Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), the
Act’s amendments to 28 U.S.C. § 1915 do not apply here. White v. Gregory, 87
F.3d 429, 430 (10th Cir.), cert. denied, No. 96-6330, 1996 WL 604229 (U.S.
Dec. 2, 1996).

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that Del Raine has not shown an actionable injury. Accordingly, we AFFIRM the

judgment of the district court.



                                  DISCUSSION

      We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court pursuant to Fed. R.

Civ. P. 56(c). Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). If

we determine that there is a genuine dispute of material fact between the parties,

summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986).



A.    Issue of Material Fact

      In support of his motion for summary judgment, Nelson provided the

district court with a sworn affidavit indicating that he ordered Del Raine to take

his breaks in the designated break room only when smokers were not present.

Nelson claims that after learning of Del Raine’s medical condition, he told Del

Raine that he could take his breaks in other areas as long as he was in plain view

of supervising staff.

      In response to Nelson’s motion for summary judgment, Del Raine provided

a sworn declaration indicating that Nelson never told him that he could take


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breaks outside of the designated break room when smokers were present. Del

Raine asserts that after he advised Nelson that his medical condition prohibited

him from being around passive smoke, Nelson declared that Del Raine was

required to take his breaks in the designated break room.

         The district court held that summary judgment was appropriate because

there was “no evidence that Del Raine was forcibly exposed to passive smoke”

and because it was “clear that Del Raine was afforded alternatives which would

not require him to use the break area at a time when other inmates were smoking

there.” (Order, at 3). In other words, the district court rejected Del Raine’s

testimony and adopted Nelson’s testimony wholesale. We have held that in

reviewing a grant of summary judgment, “we examine the factual record and

reasonable inferences therefrom in the light most favorable to the party opposing

summary judgment.” Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.

1995).

         Although we allow prison officials to make a factual report on whether a

prisoner’s allegations have any factual or legal basis, in summary judgment

proceedings a court is unauthorized to accepts the factual findings of prison

officials if the prisoner has presented conflicting evidence. Northington v.

Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992). Accordingly, the district court

erred in determining that there was no material issue of fact.


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B.    Actionable Injury

      The Supreme Court has determined that prison officials may impose a de

minimis level of inconvenience on prisoners without violating the Eighth

Amendment. Bell v. Wolfish, 441 U.S. 520, 539 n. 21 (1979). Assuming, as we

must, that Del Raine’s version of the facts is correct, he must still produce

evidence of an actual medical injury to survive summary judgment. Del Raine has

not produced such evidence. Accordingly, summary judgment is appropriate in

this case.

                                  CONCLUSION

      For the reasons stated above, we AFFIRM the judgment of the district

court. The mandate shall issue forthwith.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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