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

                                                                  FILED
                                                                 April 30, 2008
                                No. 07-40340
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

GETZELL JOHNSON MURRELL, SR

                                           Plaintiff-Appellant

v.

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 REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Getzell Johnson Murrell, federal inmate # 87468-011, appeals the district
court’s denial of his pro se suit filed pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Murrell alleged that the
defendants violated his Eighth Amendment right to be free from cruel and
unusual punishment when they failed to enforce a no smoking policy at the


      *
      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should not be published and is not precedent except under the limited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. 07-40340

prison in Beaumont, Texas, thereby exposing him to excessive levels of
environmental tobacco smoke (ETS). This court vacated the district court’s
dismissal of Murrell’s ETS claim for failure to state a claim for which relief could
be granted and remanded the case to the district court for further proceedings.
      On remand, the district court dismissed Defendant Harrell Watts for lack
of personal jurisdiction and dismissed the remaining defendants pursuant to
summary judgment. Murrell does not challenge the dismissal of Defendant
Watts for lack of subject matter jurisdiction and has, therefore, abandoned any
argument relative to his dismissal. See Geiger v. Jowers, 404 F.3d 371, 373 n.6
(5th Cir. 2005)
      Murrell argues that the district court violated the law of the case doctrine
when it granted summary judgment for the defendants on his ETS claim.
Murrell misapprehends the difference between dismissals for failure to state a
claim and the availability of summary judgment.           Summary judgment is
appropriate when, considering all of the allegations in the pleadings, depositions,
admissions, answers to interrogatories, and affidavits, and drawing inferences
in the light most favorable to the nonmoving party, “‘there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a
matter of law.’” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc) (quoting FED. R. CIV. P. 56(c)). If the moving party meets his burden of
showing that no genuine issue exists, the burden shifts to the nonmoving party
to produce evidence or set forth specific facts showing the existence of a genuine
issue for trial.   Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).         The
nonmovant cannot satisfy his summary judgment burden with conclusional
allegations, unsubstantiated assertions, or only a scintilla of evidence. Little, 37
F.3d at 1075. This court reviews the grant of a motion for summary judgment
de novo. Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir. 1996).
      To succeed on a Bivens cause of action, the plaintiff must demonstrate a
constitutional violation. Garcia v. United States, 666 F.2d 960, 961 (5th Cir.

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1982). A Bivens action is analogous to an action under § 1983 except that § 1983
applies to constitutional violations by state, rather than federal actors; this court
does not distinguish between Bivens and § 1983 claims. Izen v. Catalina,
398 F.3d 363, 367 n.3 (5th Cir. 2005).
      In Helling v. McKinney, 509 U.S. 25, 28 (1993), the Supreme Court set
forth a two-prong test to determine whether exposure to second-hand smoke
entitles an inmate to injunctive relief because it violates his Eighth Amendment
right to be free from cruel and unusual punishment. First, a prisoner must
prove objectively that he is “being exposed to unreasonably high levels of ETS.”
Helling, 509 U.S. at 35. In assessing this first factor, the court must inquire into
the seriousness of the potential harm and into the likelihood that second-hand
smoke will actually cause such harm. Id. at 36. The court is further required
to determine “whether society considers the risk . . . to be so grave that it
violates contemporary standards of decency to expose anyone unwillingly to such
a risk.” Id. Second, the prisoner must show subjectively that prison authorities
demonstrated a “deliberate indifference” to his plight. Id.
      Murrell’s sworn declaration included the following competent summary
judgment evidence: he was assigned to a non-smoking unit but smokers were
housed at the same unit; he was exposed to excessive levels of ETS 12 to 24
hours a day in his housing unit and at the factory where he worked; the smoke
was often so thick in his housing unit that he had to hold a wet towel over his
face to breathe; he advised the defendants that the no smoking policy was not
being enforced and that he was having serious health problems that included
migraine headaches and respiratory problems. See Hart v. Hairston, 343 F.3d
762, 764 n.1, 765 (5th Cir. 2003). This evidence creates genuine issues of
material fact regarding whether Murrell objectively proved that he was exposed
to unreasonably high levels of ETS and whether the defendants were
subjectively deliberately indifferent to his plight. See Helling, 509 U.S. at 35-
36;Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), abrogated on other grounds,

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Booth v. Churner, 532 U.S. 731 (2001) (Prisoner Litigation Reform Act requires
exhaustion of administrative remedies regardless of what relief is available
through administrative procedures), and Rochon v. City of Angola, 122 F.3d 319,
320 (5th Cir. 1997). Therefore, the district court erred when it granted summary
judgment for the defendants on Murrell’s ETS claim.
      Murrell further argues that the district court erred when it granted
summary judgment for Defendants Carter, White, Mallisham, Watts, Thompson,
Saputo, and Williams because he had no evidence of their personal involvement.
A supervisory official is not liable for the actions of subordinates on a theory of
vicarious liability or respondeat superior, but he will have personal liability if
he is personally involved in a constitutional deprivation or if there is a sufficient
causal connection between the supervisor’s conduct and the violation.
Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).
      Murrell presented evidence that he advised Defendants Carter, White,
Mallisham, Thompson, Saputo, and Williams, either verbally or in written
grievances, that the no smoking policy was not being enforced at the prison at
Beaumont and that he was having serious health problems as a result. This
evidence creates a genuine issue of material fact as to whether the defendants
were involved in violating Murrell’s Eighth Amendment right to be free of cruel
and unusual punishment. See Thompkins, 828 F.2d at 303-04. Accordingly, the
district court’s grant of summary judgment for these defendants on the basis
that they lacked personal involvement was error.
      Murrell argues that the district court erred when it determined that the
defendants were entitled to qualified immunity from his suit. Public officials are
entitled to qualified immunity from suit under § 1983 unless the plaintiff makes
specific allegations that the officials violated clearly established law. Morin v.
Caire, 77 F.3d 116, 120 (5th Cir. 1996). This court uses a two-part test to
determine if qualified immunity applies. “First, [this court] determine[s] if the



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plaintiff has stated a violation of a clearly established constitutional right. If so,
[this court] next examine[s] the reasonableness of the defendant’s conduct.” Id.
      As set forth above, Murrell has presented evidence that creates a genuine
issue of material fact as to whether the defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment.                    The
defendants, therefore, are not entitled to qualified immunity. See Rochon, 122
F.3d at 320.
      The judgment for defendant Watts is AFFIRMED; judgment for the
remainder of the defendant-appellees is REVERSED and REMANDED.




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