Ware v. Batson, et al

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Case: 09-30018 Document: 00511196862 Page: 1 Date Filed: 08/06/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-30018 S u m m a r y Calendar August 6, 2010 Lyle W. Cayce Clerk M A R V I N EDWARD WARE, P la in t if f -A p p e lla n t v. A N T H O N Y BATSON; RICHARD PUSCH; R L STALDER; STATE OF L O U I S I A N A ; GEORGE SAVAGE, D e fe n d a n t s -A p p e lle e s A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 5:07-CV-1705 B e fo r e KING, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* M a r v in Edward Ware, Texas prisoner # 123116, appeals the summary ju d g m e n t in favor of the appellees in his 42 U.S.C. § 1983 action, in which he a lle g e d that he has been exposed to excessive environmental tobacco smoke. We g r a n t e d Ware's motion for leave to proceed in forma pauperis (IFP) and ordered t h e parties to file briefs. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-30018 Document: 00511196862 Page: 2 No. 09-30018 Date Filed: 08/06/2010 W a r e argues that the district court erred in granting the appellees' s u m m a r y judgment motion concerning his environmental tobacco smoke claim. Ware further asserts that Batson and Savage lied in their affidavits concerning h is housing from February 28 to March 7, 2008, and therefore, they cannot be t r u s t e d . He contends the district court ignored this evidence that Batson and S a v a g e lied and improperly dismissed his case. W e review the district court's grant of summary judgment de novo. See B a r a n o w s k i v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). Summary judgment is a p p r o p r ia te "if the pleadings, the discovery and disclosure materials on file, and a n y affidavits show that there is no genuine issue as to any material fact and t h a t the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 5 6 (c )(2 ). The moving party bears the burden to "demonstrate the absence of a g e n u in e issue of material fact." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5 t h Cir. 1994) (en banc) (internal quotation marks and citation omitted). The district court erred in determining that Ware did not present any c o m p e t e n t summary judgment evidence. Ware's complaint constitutes c o m p e t e n t summary judgment evidence. See Hart v. Hairston, 343 F.3d 762, 764 n .1 (5th Cir. 2003) (declarations in verified complaint are competent summary ju d g m e n t evidence). In his verified complaint, Ware alleged that: he was housed in a nonsmoking dorm which did not have a good ventilation system; over half o f the inmates in his dorm and some employees smoked; inmates smoked inside w h e n the unit's doors were locked; inmates also smoked in the yard in the front o f the building and smoke went into the dorm through the windows; and Ware w a s exposed to smoke in the stands at the ball field, while he walked to and from t h e dining hall, and while he worked in the kitchen. He alleged that Sergeants W a s h in g t o n , Johnson, Shoemaker, and Montgomery, as well as Captain Smith, a ls o smoked in the building. He alleged that he suffered headaches and red eyes a s a result of exposure to environmental tobacco smoke. Ware also filed a g r ie v a n c e , alleging that inmates frequently violated the no-smoking policies and 2 Case: 09-30018 Document: 00511196862 Page: 3 No. 09-30018 Date Filed: 08/06/2010 t h a t he suffered headaches due to the exposure to the environmental tobacco s m o k e . Warden Wayne Millus denied the grievance because Ware did not id e n tify the inmates who violated the no-smoking policies. Ware alleged that S e c r e t a r y Stalder responded that nothing could be done until August 2009. He a lle g e d he wrote letters to George Savage and the Warden but he got no respon se. W a r e 's verified complaint provides sufficient summary judgment evidence t o create a genuine issue of material fact concerning whether he was exposed to u n r e a s o n a b le levels of environmental tobacco smoke and, therefore, to withstand t h e defendants' motion for summary judgment. See Helling v. McKinney, 509 U .S . 25, 28 (1993); see also Whitley v. Hunt, 158 F.3d 882, 888 (5th Cir. 1998), o v e r r u le d on other grounds, Booth v. Churner, 532 U.S. 731 (2001); Rochon v. C ity of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Ware's verified complaint and g r ie v a n c e create a genuine issue of material fact concerning whether the d e fe n d a n t s actually enforced the no-smoking policy on a regular basis and, if not, w h e t h e r the defendants' failure to enforce the policy constituted deliberate in d iffe r e n c e to Ware's exposure to environmental tobacco smoke. See Helling, 5 0 9 U.S. at 36. The district court's reliance on the defendants' affidavits that the n o - s m o k in g policy was enforced amounted to a credibility determination that w a s inappropriate for summary judgment. See Robinson v. Louisiana, 363 F . App'x 307, 308 (5th Cir. 2010). Therefore, the district court erred in granting a summary judgment on this claim for the defendants. See Little, 37 F.3d at 1 0 7 5 . We VACATE the judgment as to Ware's environmental tobacco smoke c la im , and REMAND the case for further proceedings concerning this claim. 3

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