                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                   July 2, 2014

                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
BYRON SMITH,

             Plaintiff-Appellant,

v.                                                        No. 13-3251
                                             (D.C. No. 5:06-CV-03061-JTM-KGG)
WILLIAM E. HOWELL, JR., Safety                             (D. Kan.)
Manager, Federal Bureau of Prisons, in
his official and individual capacity;
JOHN PARENT, Custodial Maintenance
Services Manager, Federal Bureau of
Prisons, in his official and individual
capacity; TERESA HARTFIELD,
Education Administrator/Principle,
Federal Bureau of Prisons, in her official
and individual capacity; JEFFERY
SINCLAIR, Electric Shop Supervisor,
Federal Bureau of Prisons, in his official
and individual capacity; JOHN DOE,
Education Staff Member, Federal Bureau
of Prisons, in his official and individual
capacity; JANET DURBIN, Education
Staff Member, Federal Bureau of Prisons,
in her official and individual capacity;
STEPHANIE WHEELER, Safety Officer,
Federal Bureau of Prisons, in her official
and individual capacity; EDDIE
GALLEGOS, Acting Warden, in his
individual capacity; NEIL BUSTRAIN,
BOP Officer/Card Holder, in his
individual capacity,

             Defendants-Appellees.
                            ORDER AND JUDGMENT*


Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.


      Plaintiff Byron Smith appeals the district court’s grant of summary judgment

on his Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971), claim in favor of the defendants, who are employees and

administrators at the Federal Bureau of Prisons and the United States Penitentiary at

Leavenworth.1 Smith alleges the defendants violated his Eighth Amendment rights

when he was exposed to asbestos while he was an inmate at Leavenworth doing

electrical work for the prison. The defendants moved for summary judgment based

on qualified immunity, and the district court granted it as to all defendants. We have

jurisdiction under 28 U.S.C. §1291 and affirm.



*
      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
       Smith’s initial complaint alleged additional claims against additional
defendants. We previously affirmed the district court’s dismissal of all Smith’s
claims against all defendants under the Federal Tort Claims Act, as well as his Bivens
claims against all defendants except the remaining defendants named in their
individual capacities. Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009).


                                         -2-
       In 2003, “Smith received a work order from his supervisor, defendant Jeffery

Sinclair, to install a new light fixture in a closet in the prison’s education

department.” Smith v. United States, 561 F.3d 1090, 1094 (10th Cir. 2009). A 1994

survey by the Ramsey-Schilling Consulting Group had documented the presence of

asbestos in Leavenworth’s education building and reported that the pipe insulation in

this particular closet was damaged. Smith claims that defendant John Parent,

Leavenworth’s custodial services manager, told Smith he had written a memo prior to

this work order warning prison officials not to let anyone in the classroom closet due

to the damaged asbestos insulation.

       The 2003 work order was approved by defendant Teresa Hartfield, the

education administrator, and was sent to Sinclair by defendant Janet Durbin, a staff

member in the education department.2 Durbin opened the classroom closet for Smith

and his work crew and showed them where she wanted the light fixture. “While

Smith was installing the light fixture, a fellow inmate, Carlos Gonzalez, . . . who had

been instructed by prison staff to clean the closet, then began pulling insulation off of

the pipes in the closet, thereby filling the air with dust.” Id. Smith alleges that this

dust contained asbestos and that the dust irritated his eyes and throat. Smith and the

crew left the closet until the dust settled and “Durbin directed Gonzalez to wait until

the light fixture was installed before continuing his work in the closet [and t]he work

crew suspended work until the dust settled.” Id.
2
       Ms. Durbin was never served with process.


                                           -3-
      The next day, Smith was given another work pass by Sinclair and he and
      the other members of the work crew returned to the closet to finish
      installing the light fixture. They were again given access to the closet
      by Durbin, and she again supervised their work. Gonzalez was allowed
      back into the closet while Smith and the others were working inside.
      Once inside, Gonzalez pulled insulation off pipes, releasing additional
      dust to which Smith was exposed. The dust again caused irritation to
      Smith, and the work crew again stopped working until the dust settled.
      Durbin directed Gonzalez to leave the closet, threatening to write a
      report on him if he did not comply. After the dust cleared, Smith and
      the crew continued work on the fixture, but could not get the light to
      work. Durbin called Sinclair, and he arrived to assist. The job was then
      completed.

Id.

      After allowing Smith to conduct limited discovery, the district court granted

summary judgment in favor of all defendants. First, it ruled the evidence taken in the

light most favorable to Smith fell short of establishing an Eighth Amendment claim

for cruel and unusual punishment. The court assumed defendants were previously

aware of a low risk of asbestos exposure before the work order and were aware there

was friable asbestos3 in the closet when work continued the second day,4 but it ruled

3
       “A ‘friable’ asbestos material is one that, when dry, may be crumbled,
pulverized, or reduced to powder by hand pressure, and includes previously
nonfriable material after such previously nonfriable material becomes damaged to the
extent that when dry it may be crumbled, pulverized, or reduced to powder by hand
pressure.” Adams-Arapahoe Sch. Dist. No. 28-J v. GAF Corp., 959 F.2d 868, 870
(10th Cir. 1992) (internal quotation marks omitted). “Respirable asbestos fibers may
be released from ‘friable’ asbestos-containing materials when such materials are
disturbed.” Id. Nothing in the district court’s decision supports Smith’s argument
that the court confused friable asbestos with undisturbed and intact asbestos.
4
      We previously held that Smith pleaded sufficient facts that the defendants
were aware that asbestos was present in the closet to withstand dismissal under
Fed. R. Civ. P. 12(b)(6). Smith, 561 F.3d at 1105.

                                         -4-
the evidence still did not show that defendants acted with deliberate indifference in

response to the release, or that Smith’s limited exposure amounted to a substantial

risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 828 (1994) (“A prison

official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate

violates the Eighth Amendment.”). Second, it ruled even if Smith’s limited exposure

to asbestos had been sufficient to constitute a violation of his Eight Amendment

rights, no such violation was clearly established at the time of the incident.

See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (government officials are entitled

to qualified immunity where “their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known”

(internal quotation marks omitted)).

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

the same legal standard used by the district court.” Martinez v. Beggs, 563 F.3d

1082, 1088 (10th Cir. 2009). “When a defendant asserts qualified immunity at

summary judgment,” the plaintiff has the burden “to show that: (1) the defendant

violated a constitutional right and (2) the constitutional right was clearly

established.” Id. We maintain the discretion to decide “which of the two prongs of

the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.

      Smith argues on appeal that defendants did violate his Eighth Amendment

rights and that these rights were clearly established. We need not address the first


                                          -5-
prong because we find no authority from the Tenth Circuit or the Supreme Court that

would have given defendants notice that their actions would violate Smith’s rights.

A constitutional right is clearly established when, at the time of the alleged violation,

the contours of the right were so clear that a reasonable official would understand

that his actions violated that right. Walker v. City of Orem, 451 F.3d 1139, 1151

(10th Cir. 2006). The question of whether a right is clearly established must be

answered “in light of the specific context of the case, not as a broad general

proposition.” Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012) (internal

quotation marks omitted). In order for the law to be clearly established, “there must

be a Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the [right] to be as the plaintiff

maintains.” Eidson v. Owens, 515 F.3d 1139, 1148 (10th Cir. 2008) (internal

quotation marks omitted).

      In Helling v. McKinney, the Supreme Court held that the Eighth Amendment

protects prisoners from an official’s deliberate indifference to conditions posing an

unreasonable risk of serious damage to the prisoner’s future health. 509 U.S. 25,

33-35 (1993). At issue in Helling was an inmate’s exposure to environmental

tobacco smoke in the absence of a present physical injury. The Court held an inmate

must show he was “exposed to unreasonably high levels” of environmental toxins.

Id. at 35. To violate the Eighth Amendment, the inmate must show the risk he

complains of is one that “society considers . . . so grave that it violates contemporary


                                          -6-
standards of decency to expose anyone unwillingly to such risk.” Helling, 509 U.S.

at 36. (“In other words, the prisoner must show that the risk of which he complains is

not one that today’s society chooses to tolerate.”).

      Smith cites no Tenth Circuit or Supreme Court cases in 2003 holding that a

limited exposure to asbestos dust for a few hours poses such an objectively serious

risk of future harm to offend contemporary standards of decency. Indeed, there is no

such authority even today. Smith cites to an Eleventh Circuit decision, Powell v.

Lennon, 914 F.2d 1459, 1461-64 (11th Cir. 1990), which denied qualified immunity

to prison officials who forced an inmate to remain in his cell filled with large

quantities of friable asbestos for six months, ignoring the inmate’s repeated requests

to be moved to an asbestos-free environment. He also cites a Ninth Circuit decision,

Wallis v. Baldwin, 70 F.3d 1074, 1075-77 (9th Cir. 1995), which denied qualified

immunity where an inmate was required to work for forty-five hours in an

unventilated attic containing friable asbestos scattered all around from broken and

damaged asbestos-insulated pipes, despite a prior order from the state fire marshal to

remove the material hanging from the damaged pipes.5


5
       Smith also relies heavily on an unpublished Clear Air Act case from the
Kansas district court citing a Congressional finding that “‘medical science has not
established any minimum level of exposure to asbestos fibers which is considered to
be safe to individuals exposed to the fibers.’” United States v. A.A. Mactal Constr.
Co., Inc., No. CIV. A. 89-2372-V, 1992 WL 245690, at *3 (D. Kan. Apr. 10, 1992)
(unpublished) (quoting 20 U.S.C. § 4011(a)(1)). An unpublished case having nothing
to do with the Eighth Amendment can hardly be said to place Smith’s claim of an
Eighth Amendment violation beyond debate.


                                          -7-
      We agree with the district court that the facts of Powell and Wallis are not

sufficiently analogous to the extremely limited exposure of only a few hours here.

See Ashcroft v. al-Kidd,      U.S.      , 131 S. Ct. 2074, 2083 (2011) (“We do not

require a case directly on point, but existing precedent must have placed the statutory

or constitutional question beyond debate.”); Eidson, 515 F.3d at 1148 (stating that to

be clearly established law, facts of cases need not be identical, but they must be

sufficiently analogous). Both Powell and Wallis involved an inmate’s prolonged

exposure to large amounts of friable asbestos, whereas Smith was exposed only to a

small quantity from one damaged pipe for just a few hours. Moreover, Ninth and

Eleventh Circuit law are not controlling precedent for purposes of qualified

immunity. Our survey of authority from other circuits confirms the district court’s

conclusion that the weight of authority does not clearly establish a right to be free

from even a few hours of exposure to friable asbestos.

      We conclude that Smith did not meet his burden to show that the constitutional

right he claims was violated was clearly established. The judgment of the district

court is affirmed.

                                                Entered for the Court


                                                Gregory A. Phillips
                                                Circuit Judge




                                          -8-
