UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANK LINWOOD MILLS,
Plaintiff-Appellee,

v.

JAY J. CLARK, Superintendent of
Southern Correctional; MICHAEL T.
W. BELL, Superintendent of Wayne
Correctional Center,
Defendants-Appellants,
                                                               No. 99-6334
and

NORTH CAROLINA DEPARTMENT OF
CORRECTIONS; MARVIN L. POLK,
Superintendent of Franklin
Correctional; JOHN WILLIAMS,
Superintendent of Tillery
Correctional; MACK JARVIS,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-877-5-BR)

Argued: September 24, 1999

Decided: September 5, 2000

Before WIDENER and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Reversed by unpublished per curiam opinion.
COUNSEL

ARGUED: Elizabeth F. Parsons, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellants. Kristin Davis Parks, NORTH CAROLINA
PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellee. ON BRIEF: Michael F. Easley, North Carolina Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendants Michael T. W. Bell and Jay Clark appeal the denial of
their February 3, 1999 motion for summary judgment based on quali-
fied immunity. Plaintiff Frank Linwood Mills was a prisoner of the
State of North Carolina. Plaintiff brought this civil action pursuant to
42 U.S.C. § 1983 alleging he was subjected to cruel and unusual pun-
ishment in violation of the Eighth Amendment. Because we conclude
that under the circumstances of this case defendants' actions did not
violate a clearly established right of the plaintiff, we reverse the deci-
sion of the district court denying qualified immunity to both defen-
dants.

I.

For the purposes of this appeal, the facts may be briefly summa-
rized. From November 1996 to October 1997, plaintiff was confined
at four North Carolina correctional institutions. On November 20,
1996, plaintiff was admitted to Southern Correctional Institution in
Troy, North Carolina. Plaintiff was subsequently transferred three dif-
ferent times. At each of the correctional institutions, plaintiff filed for-

                     2
mal grievances that were all similar in nature. In each grievance,
plaintiff complained of chest pain and shortness of breath resulting
from environmental tobacco smoke, commonly known as second
hand smoke. Only the circumstances surrounding plaintiff's confine-
ment at the first two correctional facilities, Southern Correctional
Institution and Wayne Correctional Center, are pertinent to this appeal.1

At Southern, plaintiff was assigned to one of twelve bunk beds
located in a day room where inmates were permitted to smoke. Plain-
tiff filed his first formal grievance on November 20, 1996, complain-
ing of chest pain and shortness of breath that lasted for hours a day.

Plaintiff was transferred to Wayne on January 2, 1997. On Febru-
ary 27, 1997,2 the superintendent of Southern formally responded to
plaintiff's initial grievance and stated that a preference for smoking
or non-smoking was not a determining factor in bed assignments
because of the computerized ventilation system, but upon recommen-
dation from medical staff, prisoners could be moved to accommodate
a medical condition. While at Southern, plaintiff's medical records
indicate he made no complaints about injury from second hand smoke
to Southern's medical personnel, although he did complain about a
previous fall in Halifax County and was treated for that by Dr. Boyles
on November 22, 1996.

While at Wayne, plaintiff was required to attend weekly sessions
in a substance abuse program. On January 4 and 11, 1997, plaintiff
filed grievances which stated that although no-smoking signs were
posted where the program was held, approximately 125 of the 150
_________________________________________________________________
1 The first transfer was to Wayne Correctional Center on January 2,
1997, the second transfer was to Franklin Correctional Center on Febru-
ary 4, 1997, and finally plaintiff was transferred to Tillery Correctional
Center on July 17, 1997.

Only Mills' claim for damages at the first two prisons are before us in
this appeal. All the other claims have been resolved adversely to Mills
and are not appealed.
2 The grievance was made and received by prison officials on Decem-
ber 25, 1996, but response was apparently delayed because Mills had
another grievance pending at that time.

                    3
inmates participating in the program smoked during the sessions.3
Plaintiff further stated that his exposure to environmental tobacco
smoke during these sessions caused him chest pain and shortness of
breath. As at Southern, the record indicates plaintiff made no com-
plaint with respect to second hand smoke to the medical staff while
at Wayne.

Plaintiff initiated this action naming as defendants the North Caro-
lina Department of Correction; Jay Clark, the Superintendent of the
Southern Correctional Center; Michael T. W. Bell, Superintendent of
Wayne Correctional Center; Marvin Polk, Superintendent of Franklin
Correctional Center; and John Williams, Superintendent of the Tillery
Correction Center. Plaintiff alleged that the Department of Correc-
tions and the staff at each correctional center were deliberately indif-
ferent to his exposure to environmental tobacco smoke. The district
court dismissed plaintiff's claims for monetary damages against the
Department of Corrections and the superintendents in their official
capacities. The court also dismissed the plaintiff's claims for injunc-
tive relief against the superintendents of Southern, Franklin, and
Wayne Correctional Centers as moot. Finally, with respect to plain-
tiff's claim for monetary damages against each of the superintendents
individually, the district court granted summary judgment in favor of
defendants Polk and Williams, but denied defendants Clark's (South-
ern) and Bell's (Wayne) motion for summary judgment based on
qualified immunity.

Bell and Clark appealed to this court.

II.

The only issue we consider is whether the district court correctly
denied defendants' summary judgment motion upon determining that
defendants were not entitled to qualified immunity. The principles of
summary judgment and qualified immunity that control our review
follow.
_________________________________________________________________

3 Defendants were unable to locate a response to plaintiff's January 4,
1997 and January 11, 1997 grievances.

                    4
It is now well accepted that, "`[A] district court's denial of a claim
of qualified immunity . . . is an appealable final decision within the
meaning of 28 U.S.C. 1291 notwithstanding the absence of a final
judgment.'" Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996)
(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). We review
the district court's denial of a defense of qualified immunity de novo.
Hodge v. Jones, 31 F.3d 157, 163 (4th Cir. 1994).

Qualified immunity shields government officials performing dis-
cretionary functions from civil liability provided their conduct "does
not violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Slattery v. Rizzo, 939
F.2d 213, 216 (4th Cir. 1991) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The plaintiff's rights must be established so clearly
that a "reasonable official would understand that what he is doing vio-
lates that right." Slattery, 939 F.2d at 216 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Accordingly, ruling on a
defense of qualified immunity requires "(1) identification of the spe-
cific right allegedly violated; (2) determining whether at the time of
the alleged violation the right was clearly established; and (3) if so,
then determining whether a reasonable person in the[official's] posi-
tion would have known that doing what he did would violate that
right." Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992).

In order to shield officials from both the burdens of litigation as
well as liability, establishment of qualified immunity is encouraged at
the summary judgment stage. Pritchett, 973 F.2d at 313 (citing Har-
low, 457 U.S. 815-819). However, summary judgment remains appro-
priate "only if (1) there are no genuine issues of material fact, and (2)
on the undisputed facts the defendant as movant is entitled to judg-
ment as matter of law." Pritchett, 973 F.2d at 313 (citations omitted).
Thus, we only consider whether a reasonable officer would have
known that his conduct violated a specific right if there are no genu-
ine issues of fact with respect to the official's conduct under the cir-
cumstances. If issues of fact do exist, summary judgment is
inappropriate, and the issue must be reserved for trial. Pritchett 973
F.2d at 313 (citing Mitchell, 472 U.S. at 526).

III.

Keeping in mind these principles, we now address whether the dis-
trict court properly denied defendants' claims of qualified immunity.

                     5
In determining whether the specific right allegedly violated was
clearly established, tolerance is accorded in the qualified immunity
defense to "`good faith' mistakes of judgment traceable to unsettled
law, or faulty information, or contextual exigencies. . . [which] is
deliberately designed to give protection to `all but the plainly incom-
petent or those who knowingly violate the law.'" Pritchett, 973 F.2d
at 313 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

In Helling v. McKinney, the Supreme Court held that a plaintiff
"states a cause of action under the Eighth Amendment by alleging that
. . . [the defendants] have, with deliberate indifference, exposed him
to levels of . . . [environmental tobacco smoke] that pose an unreason-
able risk of serious damage to his future health." 509 U.S. 25, 35
(1993). In determining whether environmental tobacco smoke condi-
tions are sufficient to violate the Eighth Amendment requires "more
than a statistical inquiring into the seriousness of the potential harm,"
but also an assessment of whether "society considers the risk . . . so
grave that it violates contemporary standards of decency." Helling,
509 U.S. at 36. Therefore, Helling establishes a constitutional right to
be free from a level of environmental tobacco smoke so high that it
poses an unreasonable risk of serious damage to future health, and to
prevail, a plaintiff must show that he has not only been exposed to
such unreasonably high levels of smoke but also that such exposure
is contrary to current standards of decency for anyone to be so
exposed and that today's society will not tolerate such exposure. Hel-
ling, 509 U.S. at 35-36.

Helling involved a prisoner who was assigned to a cell with an
inmate who smoked five packs of cigarettes per day. Helling, 509
U.S. at 36. In determining that the prisoner had stated a valid cause
of action under the Eighth Amendment, the Court impliedly found
that exposure to such amounts of environmental tobacco smoke could
be found to be unreasonably high. But Helling goes no further in
defining what constitutes unreasonably high levels of environmental
tobacco smoke. As a result, while a prisoner may have a clearly estab-
lished right to be free from unreasonably high levels of environmental
tobacco smoke after Helling, a superintendent may be unaware that
a prisoner's current exposure amounts to this unreasonably high level.
Qualified immunity will continue to protect superintendents who
make discretionary decisions in situations where a prisoner's expo-

                     6
sure to environmental tobacco smoke is not clearly unreasonably
high.

Because we find that plaintiff's exposure to environmental tobacco
smoke in this case was not to a degree that would have lead a reason-
able official to conclude that a person's rights were violated, defen-
dants are entitled to qualified immunity.

A.

Turning first to the 43 day period plaintiff spent at Southern Cor-
rectional Institution. Plaintiff's Grievance No. 4215-97-0018 states
that his environmental tobacco smoke exposure caused him shortness
of breath and pain in the chest. The response to plaintiff's grievance
shows that defendant Clark considered plaintiff's complaint and fol-
lowed the policies of both the Division of Prisons and Southern Cor-
rectional Institution. The response shows the reliance of Clark that the
computerized ventilation system was sufficient for those prisoners but
that in cases in which documented medical problems occurred [here
second hand smoke] and upon recommendation from the medical
staff, an inmate would be moved to another bed to correct the medical
problem.

The prison's response relates that "preference for smoking or non-
smoking is not a determining factor in bed assignments due to the
computerized ventilation system. However, under circumstances
where documented medical problems exists and a recommendation
from the medical staff, a bed movement is made to satisfy the medical
condition." The response further relates that on admission, Mills com-
plained to the medical authorities at Southern about a fall he had pre-
viously suffered which resulted in back pain. The medical record for
that instance shows that he also complained at that time about a
sprained wrist, but that he did not complain about any other medical
or health problem while he was confined at Southern. Because the
system was in place at Southern to allay any justified complaint of
Mills with respect to the effect of second hand smoke on his health,
and he did not take advantage of the relief afforded him, we are of
opinion that it was not clearly established to the knowledge of the
prison authorities that the level of second hand smoke in this dormi-
tory with computerized ventilation posed any unreasonable risk of

                    7
serious damage to the health of Mills. Thus, we are of opinion that
Mills' rights under Helling have not been violated and that the district
court erred in not dismissing the complaint against the defendant
Clark, the prison superintendent at Southern. Clark's discretionary
decision, based on the institutional policy above-described and with
no evidence of physical harm, although available, is just the kind of
circumstance which the doctrine of qualified immunity seeks to pro-
tect.

B.

We now turn to the 34 day period plaintiff spent confined at Wayne
Correctional Center. At Wayne, plaintiff filed grievances stating that
he was placed in a room where approximately 100-125 of the 150
inmates were smoking, which again caused him shortness of breath
and chest pain. Plaintiff was assigned to the room at issue only one
hour each week4 for a substance abuse program which he had unsuc-
cessfully attempted to avoid apparently because he considered it
unnecessary. Again, the record indicates that plaintiff did not com-
plain to the medical staff about his alleged problems attributable to
environmental tobacco smoke. Moreover, other than plaintiff's com-
plaint, the record does not indicate that the exposure was unreason-
ably high.

We are of opinion that exposure to environmental tobacco smoke
once a week for only one hour does not, on its face, rise to the level
of unreasonably high exposure required by Helling. It is common
knowledge that such a level of second hand smoke is present at some
time in some part of almost every restaurant in the United States.
Additionally, unlike the prisoner in Helling, plaintiff does not allege
he was constantly exposed to environmental tobacco smoke at
Wayne. Helling does not guarantee plaintiff a smoke free environ-
ment, and we find that plaintiff does not have a clearly established
constitutional right to be free from exposure to environmental tobacco
smoke during a substance abuse program for one hour one day each
week for five weeks at the most.5 Because no such right was clearly
_________________________________________________________________
4 The record shows that Mills attended two of the substance abuse ses-
sions and may have attended three more. The record is not certain.
5 Helling requires of a prisoner that "`he himself is being exposed to
unreasonably high levels of' second hand smoke." 509 U.S. at 36 (italics

                    8
established, Bell's decision at Wayne not to remove plaintiff from the
program or to take additional action is entitled to qualified immunity,
and the district court erred in not dismissing the complaint as to him.
The judgment of the district court is accordingly

REVERSED.
_________________________________________________________________
added), and Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir.
1998), has correctly decided that "Helling did not read the Eighth
Amendment as mandating smoke-free prisons." Absent a constitutional
guarantee of a smoke free prison, there must be a de minimis requirement
in this type of case. Without deciding what that requirement is, we think
it has been reached here, so that exposure in a classroom with 125 smok-
ers for two, and perhaps five, one-hour sessions, a week apart, is not such
an unreasonably high level of second hand smoke to be an unreasonable
risk of serious danger to future health. Helling , 509 U.S. 35, 36. A fur-
ther requirement of Helling, that there be an objective factor in the deter-
mination, is not possible to be found without knowing whether or not the
degree of exposure in the particular case, to "he himself," Helling at 36,
presents an unreasonable risk of serious damage to future health. See
Helling, 509 U.S. at 35. Although the fact of Mills' exposure to second
hand smoke was known in each of the two prison settings involved here,
and the extent known at Wayne especially, there is no evidence that such
was so unreasonably high as to present risk of serious damage to Mills'
future health. See Helling, 509 U.S. at 35.

                    9
