                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 8 2005
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MARVIN B. DAVIS,

               Plaintiff-Appellant,

    v.                                                No. 03-3310
                                               (D.C. No. 00-CV-3277-MLB)
    CHARLES E. SIMMONS, Secretary                        (D. Kan.)
    of Corrections; LOUIS E. BRUCE,
    Warden, Hutchinson Correctional
    Facility; BRUCE BROWER, CCII,
    Hutchinson Correctional Facility;
    PRISON HEALTH SERVICES;
    LOUICIA OSBORNE; MARVIN
    METTSCHER, RN, Health Care
    Provider; BILL DAVIS, Master
    Sergeant, Hutchinson Correctional
    Facility; (FNU) KEEN, Master
    Sergeant, Hutchinson Correctional
    Facility; (FNU) LAWSON, Corporal,
    Hutchinson Correctional Facility,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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 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.

       Plaintiff Marvin B. Davis, a pro se inmate, appeals from the district court’s

order granting summary judgment in favor of the defendants on his civil rights

complaint, and denying his motion for summary judgment. Davis’s complaint,

brought pursuant to 42 U.S.C. § 1983, charges violations of his First, Fourth, and

Eighth Amendment rights arising out of his exposure to second-hand smoke at the

Hutchinson Correctional Facility in Hutchinson, Kansas. We affirm.

       There are two sets of defendants in this case: those affiliated with the

Kansas Department of Corrections or the Hutchinson Correctional Facility (“DOC

defendants”), and those affiliated with Prison Health Services (“PHS

defendants”). The district court granted summary judgment on Eleventh

Amendment grounds to the DOC defendants on those claims brought against them

in their official capacities, and qualified immunity on those claims brought

against them in their individual capacities. While denying immunity to the PHS

defendants, the district court concluded that Davis failed to show that PHS or its

employees had been responsible for his alleged injuries.

            We review grants of summary judgment de novo to determine
       whether any genuine issue of material fact exists, viewing all

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       evidence and any reasonable inferences that might be drawn
       therefrom in the light most favorable to the non-moving party.
       However, the nonmovant must establish, at a minimum, an inference
       of the existence of each element essential to the case.

Croy v. COBE Laboratories, Inc.     , 345 F.3d 1199, 1201 (10th Cir. 2003) (citations

and quotation omitted).

       On appeal, Davis argues that the district court: (1) erred in relying on the

Martinez report in his case, which did not meet the requirements of

Fed. R. Civ. P. 56(e), and by converting a motion to dismiss to one for summary

judgment; (2) improperly granted the DOC defendants Eleventh Amendment

immunity on his claims for injunctive and prospective relief; (3) improperly

resolved disputed issues of fact against him based on the contents of the    Martinez

report; (4) turned a “blind eye to fraud on the court,” Aplt. Br. at 2; (5) failed to

give independent consideration to his cross-motion for summary judgment; (6)

denied his cross-motion for summary judgment without requiring a response from

the defendants; (7) failed to make findings of fact and conclusions of law; (8)

violated his right to due process when it ordered the clerk of court not to file his

Rule 56(f) affidavit and his motions filed therewith, and by not ruling on them

prior to its ruling on summary judgment; (9) improperly issued a protective order

in favor of defendants, protecting them from discovery; (10) acted with bias and

prejudice against Davis; and (11) violated Davis’s right to due process by barring



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him from filing opposing pleadings while granting the defendants’ motions as

uncontested.

      Having reviewed the record, the briefs, and the applicable law, applying the

summary judgment standard outlined above, together with any other applicable

standard of review, we discern no reversible error in this case on the issues

presented. The judgment of the district court is therefore AFFIRMED. All

pending motions are denied.



                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




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