                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 24, 2007
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court

    D EN N IS M IC HA EL B LA Y ,

                Plaintiff-Appellant,

    v.                                                  No. 04-1347
                                                (D.C. No. 01-RB-1917 (M JW ))
    JOHN REILLY, Head Supervisor                          (D . Colo.)
    JVP Industries; RICHARD GRAHAM ,
    Supervisor JVP; CHARLIE
    PELLITIER, Supervisor JVP,

                Defendants-Appellees.



                              OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and TYM KOVICH, Circuit Judges.


         Dennis M ichael Blay, a prisoner at the Limon Correctional Facility (LCF)

in Limon, Colorado, worked in the LCF graphics design shop fabricating signs

from various materials. He alleges that the defendants, his supervisors at the

design shop, violated his Eighth Amendment right to be free from cruel and




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
unusual punishment by failing to provide the ventilation and tools necessary for

him to work safely. Seeking legal recourse, M r. Blay sued defendants in federal

district court under 42 U.S.C. § 1983. The district court, adopting the report and

recommendation of the magistrate judge assigned to the case, granted defendants

summary judgment. On appeal, M r. Blay asks this court to reverse the district

court’s ruling. He asserts that (1) the record shows genuine issues of fact

material to his § 1983 claims, and (2) the district court erred in denying him a

six-month extension of time to file his response to defendants’ summary judgment

motion.

      Because we agree that the existence of genuine issues of material fact

preclude summary judgment, we REVERSE the district court’s grant of summary

judgment and REM AND for further proceedings.

                                          I.

      This appeal has been before us previously. At that time, we vacated the

district court’s judgment and remanded the case to the district court, directing it

to dismiss M r. Blay’s claims without prejudice because M r. Blay had not

demonstrated the exhaustion of his administrative remedies required by 42 U.S.C.

§ 1997e(a). See Blay v. Reilly, 152 F. App’x 747, 749 (10th Cir. 2005)

(unpublished), vacated, 127 S. Ct. 1213 (2007). Our decision was mandated by

this court’s precedent at that time. See Steele v. Fed. Bureau of Prisons, 355 F.3d

1204, 1209-10 (10th Cir. 2003) (holding that § 1997e(a) imposed upon the

                                         -2-
prisoner a mandatory and unwaivable pleading requirement), abrogated by Jones

v. Bock, 127 S. Ct. 910 (2007) (holding that failure to exhaust administrative

remedies as required by 42 U.S.C. § 1997e(a) is an affirmative defense, not a

pleading requirement). On November 23, 2005, the district court complied with

the mandate of this court and entered judgment dismissing M r. Blay’s claims

without prejudice.

      On February 20, 2007, the Supreme Court granted certiorari in this case

and vacated our judgment, remanding the case to us for further consideration in

light of its ruling in Jones v. Bock. Accordingly, we have recalled our mandate to

the district court and now proceed to the merits of the appeal, exercising

jurisdiction under 28 U.S.C. § 1291.

                                           II.

      Under the Eighth Amendment, “prison officials must ensure that inmates

receive adequate food, clothing, shelter, and medical care, and must ‘take

reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan,

511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27

(1984)). Under the pertinent part of 42 U.S.C. § 1983, “[e]very person who,

under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be subjected, any

citizen of the United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution . . . shall be liable to the party injured in

                                           -3-
an action at law .” M r. Blay claims that defendants failed to take reasonable

measures to guarantee his safety–and therefore violated both the Eighth

Amendment and § 1983–by failing to provide him the ventilation and tools

necessary to work safely, despite his many requests for the same.

      M r. Blay claims that his job required him to use various tools–including

industrial saws, a sander, and a sprayer–to cut wooden signs to the correct size

and shape and then use various chemicals–including paints, primers, and mineral

spirits–to apply whatever finishing coating was necessary. He claims that the

room in w hich he w orked did not have adequate ventilation to properly disperse

the large amounts of hazardous fumes and dust produced during the fabrication

process, and that exposure to the fumes and dust caused him various injuries.

      M r. Blay also claims he was required to remove the vinyl coating from

metal sign “blanks.” R., Doc. 102 at 11. He claims that removing the vinyl

required that he precariously balance the sign blanks on two saw horses and then

use considerable force in scraping them w ith a razor blade tool. He alleges that

this was an inherently and unavoidably dangerous arrangement because the razor

blade at times unexpectedly caught on, and then uncontrollably slipped free from,

the vinyl and eventually resulted in his finger being cut.

      To prove his claims, M r. Blay must show (1) that the inadequate ventilation

and tools each posed a substantial risk of serious harm to him, and (2) that

defendants’ refusal to alleviate these risks constituted “deliberate indifference” to

                                         -4-
them. Farmer, 511 U.S. at 834 (internal quotation marks omitted). Said another

way,

       a prison official cannot be found liable under the Eighth Amendment
       for denying an inmate humane conditions of confinement unless the
       official knows of and disregards an excessive risk to inmate health or
       safety; the official must both be aware of facts from which the
       inference could be draw n that a substantial risk of serious harm
       exists, and he must also draw the inference.

Id. at 837.

       Defendants moved for summary judgment on M r. Blay’s claims. In so

moving, they had “both the initial burden of production on [their motion] and the

burden of establishing that summary judgment is appropriate as a matter of law.”

Trainor v. Apollo M etal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).

To carry their initial burden of production, they had to either produce “affirmative

evidence negating an essential element of [M r. Blay’s] claim” or show that

M r. Blay “[did] not have enough evidence to carry [his] burden of persuasion at

trial.” Id. Defendants sought to show that they were not deliberately indifferent

to the alleged risks to M r. Blay’s safety.

       To do this, defendants relied mainly on their own affidavits. M r. Reilly

averred that the graphics design shop was only four years old and was designed to

be a sign shop, “which includes the implementation of an adequate ventilation

system.” R., Doc. 77, Ex. A at 2. M r. Reilly further averred that “the health

department conducts yearly inspection tours of the building” and that in response



                                              -5-
to health inspector recommendations, the prison had added more vents, upgraded

one of the ventilation fans in “the washout room,” and purchased a dozen

respirators for use in the shop. Id. M r. Graham averred in his affidavit that he

was “aware that both the health department and the American Correctional

Association conduct inspections to insure that the shop meets all specifications

and industry standards.” Id., Ex. C at 2. He also averred that “[t]he [g]raphics

design shop was well-ventilated with two (2) industrial fans and two (2)

wall-mounted fans for the benefit of all inmate employees and supervising guards.

In addition, particle/dust masks w ere available to Inmate B lay when he worked in

the Graphics Design Shop.” Id. As to the injury M r. Blay sustained on his finger,

M r. Graham averred that the accident was addressed at a subsequent safety

meeting but that “there did not appear to be any further safety measures that could

have been implemented to avoid [that] type of accident.” Id., Ex. C at 3.

      M r. Blay filed a verified response to defendants’ motion for summary

judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (holding that if

the moving party carries its initial burden on summary judgment, the nonmoving

party must go beyond the pleadings and designate specific facts showing that

there is a genuine issue for trial). As to his inadequate ventilation claim, he

averred that the room where he worked was not equipped with its own ventilation

system; that “the small ceiling ducts that supplied air to the Prep room had

virtually no effect[] on the high-concentrations of chemical fumes or

                                          -6-
high-concentrations of . . . dust, and particulates,” R., Doc. 102 at 16; and that the

room’s industrial fan “did not draw fresh air into or exhaust air out of the Prep

Room,” id. at 6. He further averred that the shop’s general ventilation system

was not sufficient because he was ordered to keep the prep room door closed to

avoid contaminating the work product of prisoners in the “open area” of the shop.

Id. at 16. M r. Blay averred that the respirators and masks available to him did not

properly conform to his face, clogged so easily as to make breathing difficult, did

not protect against chemical fumes, and could not be worn in conjunction with

safety glasses. M r. Blay averred that the fumes and dust caused him daily nausea;

chronic headaches; blurred vision; coughing; sneezing; blood, dust, and

particulates in his nasal mucus; dust and particulates in his phlegm; chest pains;

and difficulty breathing. Id. at 2. He averred that he “complained numerous

times that the lack of ventilation and dust collection was making him sick.”

Id. at 3.

       As to his inadequate tool claim, M r. Blay averred:

       The G raphics Design Shop (“the Shop”) provided only rudimentary
       tools and equipment to work on sign blanks. Instead of a work table
       Blay was provided with two wooden “saw horses” upon which he had
       to place the metal sign blank. A chemical solvent was poured onto
       the blank, spread out, and allowed to soak in to hasten removal of the
       vinyl that was adhered to the blank. Next, he would apply
       considerable dow[nwa]rd force with the left hand while
       simultaneously pressing it against his body to keep it from moving.
       Since [the] vinyl was extremely tough and stubbornly adhered to the
       blank he had to use considerable force to scrape the vinyl off
       bit-by-bit. The awkward position and considerable force he applied

                                          -7-
       caused many close calls, regardless of how much caution he
       exercised, when removing the vinyl.

Id. at 11. M r. Blay also averred that because of several close calls where he

barely avoided cutting himself he made numerous requests to defendants for a

work table upon which to clamp the blanks and a “stripper wheel” 1 to assist in

removing the vinyl, explaining why such tools were needed to do the job safely.

He also averred that defendants had enough experience working in the shop that

the danger should have been obvious to them, but that “[s]ometime after making

each request either Graham or Pelletier would relate to Blay that Reilly had not

approved the purchase.” Id. at 11-12. M r. Blay eventually cut his left index

finger with the razor blade, allegedly causing some permanent loss of sensation.

       The magistrate judge recommended granting summary judgment, holding

that

       [w]hile [M r. Blay] allegedly expressed his concerns to the defendants
       about the shop’s ventilation, the tools he was provided, and the
       manner in which his specific job was set up, and he allegedly even
       presented to the defendants his own detailed suggestions for
       improvement, it cannot reasonably be found, based merely upon
       [M r. Blay’s] layman’s opinions, that the experienced defendants were
       aware of an excessive risk to [M r. Blay’s] health and safety and/or
       that they responded unreasonably to the risk.




1
       M r. Blay described a “stripper w heel” as a wheel attached to an electric
drill “allow[ing] the user to remove rust, paint, etc., from a variety of surfaces
efficiently and effortlessly.” R., Doc. 102 at 14.

                                         -8-
R., Doc. 110 at 15. The district court adopted the magistrate judge’s report and

recommendation and granted summary judgment and M r. Blay appealed.

      W e review a summary judgment order de novo, considering the evidence

and all reasonable inferences drawn therefrom in the light most favorable to the

nonmoving party. Cooperm an v. David, 214 F.3d 1162, 1164 (10th Cir. 2000).

Rule 56(c) of the Federal Rules of Civil Procedure states that a party is entitled to

summary judgment in his or her favor “if the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law .” “The inquiry performed is the threshold

inquiry of determining whether there is the need for a trial–whether, in other

words, there are any genuine factual issues that properly can be resolved only by

a finder of fact because they may reasonably be resolved in favor of either party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Said another way,

“[w]here the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no ‘genuine issue for trial.’” M atsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat’l

Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). In reviewing

summary judgment, we keep in mind that “[a] pro se litigant’s pleadings are to be

construed liberally and held to a less stringent standard than formal pleadings

drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

                                          -9-
      W e disagree with the district court’s determination that a reasonable

fact-finder could not find “based merely upon [M r. Blay’s] layman’s opinions,

that the experienced defendants were aware of an excessive risk to [M r. Blay’s]

health and safety and/or that they responded unreasonably to the risk.” R., Doc.

110 at 15. View ing the record in the light most favorable to M r. Blay as we must,

it is clear that defendants did not respond to the risks complained of by M r. Blay.

A reasonable fact-finder could also find that defendants were aware of an

excessive risk to M r. Blay’s health and safety. 2 In the light most favorable to

M r. Blay, the defendants knew that despite the alleged adequacy of the ventilation

in the shop as a whole and the regular safety inspections, M r. Blay’s specific job

in the enclosed and poorly ventilated prep room was causing him serious

respiratory distress and other physical problems. They also knew that, with the

tools available to him, M r. Blay had almost cut himself a number of times

because he could not avoid instances where the razor blade would catch and then

slip loose uncontrollably. Consequently, we cannot say that “the record taken as




2
       W e do note that M r. Pelletier and M r. Graham both averred that M r. Blay
never complained to them about inadequate ventilation or tools while employed at
the shop. Although–being careful to assiduously avoid any stark departure from
the summary judgment standard mandated by the Federal Rules of Civil
Procedure, cf. Erickson v. Pardus, 127 S. Ct. 2197, 2198 (2007)–we must take as
true M r. Blay’s claim that he did in fact complain to defendants about the alleged
risks to his health, we intend no comment on the m erit of any possible future
summary judgment motion based on a failure to exhaust administrative remedies
or any other not previously pursued affirmative defense.

                                         -10-
a whole could not lead a rational trier of fact to find for” M r. Blay on his claims.

M atsushita Elec. Indus. Co., 475 U.S. at 587.

      Consequently, we must reverse the district court’s grant of summary

judgment. Since we hold that M r. Blay presented sufficient specific facts in his

verified response to defeat defendants’ summary judgment motion, we need not

address his second point alleging that the district court erred in not granting him a

six-month extension of time in which to file that response.

                                          III.

      W e VACATE the district court’s November 23, 2005, judgment that was

entered in accordance with our now-withdraw n mandate. The district court’s

original July 22, 2004, judgment is REVERSED and the case is REM ANDED for

further proceedings. M r. Blay’s motion to supplement the record, previously

denied as moot, is again D EN IED. 3


                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




3
      Our previous grant of M r. Blay’s motion to proceed on appeal without
prepayment of fees remains in effect as a matter of course.

                                          -11-
