Del Raine v. Nelson ( 1996 )


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  •                       UNITED STATES COURT OF APPEALS
    Filed 12/10/96
    TENTH CIRCUIT
    RONALD DEL RAINE,
    Plaintiff - Appellant,
    v.
    No. 96-3129
    MIKE W. NELSON, Foreman,                        (D.C. No. 95-3124-RDR)
    UNICOR, U.S. Penitentiary                              (D. Kan.)
    Leavenworth,
    Defendant - Appellee.
    ORDER AND JUDGMENT *
    Before BRORBY, EBEL, and HENRY, Circuit Judges. **
    Plaintiff - Appellant Ronald Del Raine (“Del Raine”) is serving an
    aggregate prison term of 209 years in the United States Penitentiary,
    Leavenworth, Kansas (“USP”). The facts of this case arise from Del Raine’s
    employment in the Print Factory at USP, where he works under the defendant,
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This 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 to honor the parties’ request for a decision on the briefs
    without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
    is therefore ordered submitted without oral argument.
    Michael W. Nelson. On January 24, 1995, after finding Del Raine asleep during a
    scheduled break, Nelson ordered Del Raine to take his breaks only in the
    designated break room. The designated break room is used by smokers, and Del
    Raine claims to be allergic to second hand smoke. Del Raine filed a civil rights
    action in the United States District Court for the District of Kansas claiming his
    Eighth Amendment right to be free from cruel and unusual punishment was
    violated when he was forcibly exposed to passive smoke despite defendant’s
    knowledge of his medical condition. The District Court granted Nelson’s motion
    for summary judgment on two grounds: first, Nelson allowed Del Raine to leave
    the designated break room when smokers were present; second, Del Raine could
    not show an actual medical injury resulting from his exposure to second hand
    smoke. Del Raine now appeals. 1
    We disagree with the district court’s holding that there was no evidence
    indicating that Del Raine was forced to stay in the designated break room when
    smokers were present; however, we agree with the district court’s determination
    1
    We grant Del Raine’s request to proceed in forma pauperis on appeal,
    notwithstanding the district court’s denial of this request. Because Del Raine
    filed his notice of appeal on August 11, 1996, prior to the enactment of the Prison
    Litigation Reform Act, Pub.L. No. 104-134, 
    110 Stat. 1321
     (Apr. 26, 1996), the
    Act’s amendments to 
    28 U.S.C. § 1915
     do not apply here. White v. Gregory, 
    87 F.3d 429
    , 430 (10th Cir.), cert. denied, No. 96-6330, 
    1996 WL 604229
     (U.S.
    Dec. 2, 1996).
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    that Del Raine has not shown an actionable injury. Accordingly, we AFFIRM the
    judgment of the district court.
    DISCUSSION
    We review the district court’s grant of summary judgment de novo,
    applying the same legal standard used by the district court pursuant to Fed. R.
    Civ. P. 56(c). Wolf v. Prudential Ins. Co., 
    50 F.3d 793
    , 796 (10th Cir. 1995). If
    we determine that there is a genuine dispute of material fact between the parties,
    summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 247-48 (1986).
    A.    Issue of Material Fact
    In support of his motion for summary judgment, Nelson provided the
    district court with a sworn affidavit indicating that he ordered Del Raine to take
    his breaks in the designated break room only when smokers were not present.
    Nelson claims that after learning of Del Raine’s medical condition, he told Del
    Raine that he could take his breaks in other areas as long as he was in plain view
    of supervising staff.
    In response to Nelson’s motion for summary judgment, Del Raine provided
    a sworn declaration indicating that Nelson never told him that he could take
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    breaks outside of the designated break room when smokers were present. Del
    Raine asserts that after he advised Nelson that his medical condition prohibited
    him from being around passive smoke, Nelson declared that Del Raine was
    required to take his breaks in the designated break room.
    The district court held that summary judgment was appropriate because
    there was “no evidence that Del Raine was forcibly exposed to passive smoke”
    and because it was “clear that Del Raine was afforded alternatives which would
    not require him to use the break area at a time when other inmates were smoking
    there.” (Order, at 3). In other words, the district court rejected Del Raine’s
    testimony and adopted Nelson’s testimony wholesale. We have held that in
    reviewing a grant of summary judgment, “we examine the factual record and
    reasonable inferences therefrom in the light most favorable to the party opposing
    summary judgment.” Wolf v. Prudential Ins. Co., 
    50 F.3d 793
    , 796 (10th Cir.
    1995).
    Although we allow prison officials to make a factual report on whether a
    prisoner’s allegations have any factual or legal basis, in summary judgment
    proceedings a court is unauthorized to accepts the factual findings of prison
    officials if the prisoner has presented conflicting evidence. Northington v.
    Jackson, 
    973 F.2d 1518
    , 1521 (10th Cir. 1992). Accordingly, the district court
    erred in determining that there was no material issue of fact.
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    B.    Actionable Injury
    The Supreme Court has determined that prison officials may impose a de
    minimis level of inconvenience on prisoners without violating the Eighth
    Amendment. Bell v. Wolfish, 
    441 U.S. 520
    , 539 n. 21 (1979). Assuming, as we
    must, that Del Raine’s version of the facts is correct, he must still produce
    evidence of an actual medical injury to survive summary judgment. Del Raine has
    not produced such evidence. Accordingly, summary judgment is appropriate in
    this case.
    CONCLUSION
    For the reasons stated above, we AFFIRM the judgment of the district
    court. The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
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