IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-30582 __________________

RICHARD L. WILSON,

Plaintiff-Appellant,

versus

RICHARD L. STALDER; C. MARTIN LENSING,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 94-CV-736 - - - - - - - - - - (October 19, 1995) Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Richard L. Wilson, an inmate of Hunt Correctional

Center (HCC) has requested leave to appeal in forma pauperis

(IFP) from the district court's grant of summary judgment to the

defendants in his civil rights action. We grant the motion,

reverse the district court's judgment, and remand the cause for

further proceedings.

Wilson alleged in his verified civil rights complaint that

he, a nonsmoker, has been exposed to environmental tobacco smoke

(ETS) ever since he was arrested in 1983. He alleged that this

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-30582 -2-

has caused him headaches, nausea, and "shortage" of breath,

although he never had any health problems before. Wilson alleged

that he has repeatedly asked doctors, the warden, and other

prison policy-makers either to change the policy which allows

smoking in the inmate living areas or to house him in a

nonsmoking area. He alleged that medical doctors at Charity

Hospital in New Orleans have told him that his health problems

are caused by ETS and that his medical records also show this.

Wilson alleged further that prison officials have exposed

him to levels of ETS which pose an unreasonable risk of damage to

his future health. He asserts that they have acted with

deliberate indifference, which constitutes cruel and unusual

punishment. As defendants, Wilson named Warden C. Martin Lensing

(the Warden) of Hunt Correctional Center (HCC) and Richard

Stalder, Secretary of the Louisiana Department of Public Safety

and Corrections. Wilson requested a restraining order to prevent

future violations of his rights. He also requested compensatory

and punitive damages, including compensation for his future

medical expenses.

Wilson attached to his complaint a copy of an administrative

remedy proceeding (ARP) request which he sent to the Warden.

Therein, Wilson complained that, although Stalder had approved a

policy that inmates are prohibited from smoking in bed and in

other designated no-smoking areas, the policy is not being

enforced. He stated that smoking inmates have 33 "butt cans" per

section in the bed area and 10 cans in the TV area of his dorm.

The defendants filed copies of the relevant ARP documents. No. 95-30582 -3-

Lensing stated in his response, dated December 28, 1993, that

because most of the inmates smoked, the administration did not

intend to change its policy of allowing them to smoke in their

dorms. Stalder's response to the ARP was that the Warden's said

policy was acceptable to him.

Lensing and Stalder filed a motion for summary judgment with

a "Statement of Undisputed Facts," a memorandum, and voluminous

exhibits. Among their exhibits were Wilson's prison medical

records, affidavits of Dr. Frank Dienst and HCC Deputy Warden

Mariana Leger, and HCC's relevant policy statements.

Wilson also moved for summary judgment, with a supporting

memorandum and numerous exhibits, many of which were duplicates

of the defendants' exhibits. However, he did not attach his own

affidavit or state that his memorandum, which alleges facts, was

made under penalty of perjury,

. Although he did

not specifically refer to defendants' "Statement of Undisputed

Facts," he controverted several of its averments.

The magistrate judge recommended granting summary judgment

to the defendants, apparently crediting their supporting

materials, including their "Statement of Undisputed Facts." The

magistrate judge found that Wilson "suffers from seizures,

hypertension, angina, vision impairment and has experienced

shortness of breath during exertion." The magistrate judge found

further that Wilson has not complained of or been treated for

respiratory problems, and has not complained to prison medical

personnel regarding exposure to ETS. Crediting Dr. Dienst's

affidavit, the magistrate judge found that Wilson's "health No. 95-30582 -4-

problems are not the result of exposure to ETS," and that his

assertion that his health is declining as a result of ETS is

speculation.

The magistrate judge found that, assuming Wilson "has been

exposed to ETS as alleged, the summary judgment evidence showed

that the defendants have responded with policies and regulations

designed to minimize the risk of adverse health effects as a

result of exposure to ETS." In support, the magistrate judge

relied on the fact that dorm Fox 7 is smoke-free, without

adverting to Wilson's assertion that this is a special

paramilitary unit. The magistrate judge noted that smoking in

Fox 2, where Wilson is confined, is now restricted to the dayroom

during limited hours. The magistrate judge also relied on

Wilson's admission that "he did not request a transfer to a

smoke-free area, . . . because there would be more restrictions

on his liberty in that area." In conclusion, the magistrate

judge stated: "Despite [Wilson's] assertion that these policies

and regulations are not rigorously enforced, the evidence in the

record is insufficient for a reasonable factfinder to conclude

that their administration is so ineffective that it constitutes

deliberate indifference to [Wilson's] serious medical needs."

Wilson filed objections to the magistrate judge's report,

pointing out that it is undisputed that his health has worsened

during his confinement. He also asserted that "[m]edical opinion

that ETS is harmful to persons so exposed is overwhelming and

that harm is increased tremendously when serious pre-existing

conditions, such as suffered by Wilson, are present." He relies No. 95-30582 -5-

on his summary-judgment memo and attached exhibits, several of

which are newspaper and magazine articles stating that ETS

increases the risk of death from heart disease and lung cancer.

Wilson noted that his assertion that 85% of the inmates in his

dorm smoke and that most of them smoke in the living area, is

unrefuted. He averred that there are material facts in dispute,

i.e., whether HCC's policy is sufficient to eliminate concerns

about ETS and whether the policy is being enforced properly.

Wilson contended that it would be unsound legally to hold

that he cannot assert his ETS claim until after his life is

shortened by the exposure to ETS. He asserted that, considering

the medical evidence, it would be erroneous to hold that his

claim is only speculation. Wilson argued that the defendant's

claim that ETS does not contribute to his declining health is

mere speculation. The district court, adopting the magistrate

judge's report, granted the defendants' summary-judgment motion

and denied Wilson's.

Wilson requests that this court grant him leave to appeal

IFP. To obtain such leave, he must demonstrate that he is

impecunious and that he will present a nonfrivolous issue on

appeal. Carson v. Polley,

(5th Cir. 1982). An

appeal is not frivolous under

(a) if it "involves

legal points arguable on their merits." Howard v. King,

(5th Cir. 1983) (citations and quotation marks omitted).

Wilson contends that the district court erred by granting

summary judgment to Stalder and Lensing. He requests this court

to order them to "establish a smoke free dorm(s) as needed to No. 95-30582 -6-

protect Wilson, and other non-smokers, from ETS exposure and the

health risk caused by such exposure." As he conceded elsewhere

in his brief and in his objections to the magistrate judge's

report, however, Wilson can seek relief only for himself, not for

other inmates. Coon v. Ledbetter,

(5th Cir.

1986).

Wilson contends that he is entitled to reversal on grounds

that Stalder and Lensing have been deliberately indifferent to

his health and safety. "Wilson asserts that the fact that

exposure to ETS generally, and [of] previously ill persons

specifically, is a serious health problem is overwhelming,

generally accepted by all medical experts. . . ." He argues that

appellees' deliberate indifference is shown by their failure to

enforce their policy concerning ETS. He states that he "is

confined to a small area with smokers all around him, smoking

excessively." He iterates his assertion that the current

policies would not sufficiently rid the inmates' living areas of

ETS even if they were enforced, because smoking is allowed in

television rooms which are not partitioned off from the rest of

the living areas.

Rule 56(c), Fed. R. Civ. P., provides that the district

court shall render summary judgment "if the pleadings,

depositions, answers 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 a judgment as a matter of law." To avoid summary

judgment, the opposing party "by affidavits or as otherwise No. 95-30582 -7-

provided in this rule, must set forth specific facts showing that

there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see

Celotex Corp. v. Catrett,

(1986). This

court's standard of review of a summary-judgment ruling is the

same as the district court's, and it must be based on the

evidence which was presented in the district court. See Sanders

v. English,

(5th Cir. 1992).

This court has held that litigants, even if pro se, cannot

oppose motions for summary judgment with unsworn statements.

Gordon v. Watson,

(5th Cir. 1980). Wilson's

verified complaint, nevertheless, may be considered as summary-

judgment evidence. RTC v. Starkey,

(5th Cir.

1995).

Wilson contested appellees' unsworn "Statement of

Uncontested Facts" with his own such statement and his memorandum

in support of his own motion for summary judgment. These,

together with the sworn allegations of Wilson's complaint, show

that the district court erred by granting summary judgment to the

appellees. Dr. Dienst's statement that Wilson's "medical

problems [do] not arise from . . . being exposed to tobacco

smoke," cannot be dispositive of Wilson's claims, because

"unsupported . . . affidavits setting forth ultimate or

conclusory facts and conclusions of law are insufficient to

either support or defeat a motion for summary judgment." Galindo

v. Precision American Corp.,

(5th Cir. 1985).

In (Willard) Wilson v. Lynaugh,

(5th

Cir.), cert. denied,

(1989), this court held, in a No. 95-30582 -8-

case involving an ETS claim, that "conditions of confinement

which expose inmates to . . . identifiable health threats

implicate the guarantees of the Eighth Amendment." The court

held that "the district court did not abuse its discretion in

dismissing [that] case under [28 U.S.C.] § 1915(d) as frivolous

because it is duplicative," but cautioned that "this decision has

limited significance in terms of stare decisis." Id. at 851.

In Helling v. McKinney,

(1993), the

Court rejected the prison officials' contention "that only

deliberate indifference to current serious health problems of

inmates is actionable under the Eighth Amendment." The Court

affirmed the Ninth Circuit's holding "that McKinney state[d] a

cause of action . . . by alleging that petitioners have, with

deliberate indifference, exposed him to levels of ETS that pose

an unreasonable risk of serious damage to his future health."

The Court held that upon remand, McKinney "must also

establish that it is contrary to contemporary standards of

decency for anyone to be so exposed against his will and that

prison officials are deliberately indifferent to his plight."

Wilson also asserted in his complaint that his exposure to

ETS since being incarcerated had caused him headaches, nausea,

and shortness of breath. See Weaver v. Clarke,

(8th Cir. 1995) ("Weaver alleges deliberate indifference to

his existing ill health."). He stated that he has repeatedly

asked the doctors, the Warden, and other prison policy-makers

either to change the policy which allows smoking in the inmate No. 95-30582 -9-

living areas, or to house him in a nonsmoking area. Wilson

asserted that physicians at Charity Hospital in New Orleans have

told him that his health problems are caused by ETS. He alleged

further that the defendants, with deliberate indifference, have

exposed him to levels of ETS which pose an unreasonable risk of

damage to his future health.

The ARP record filed by appellees shows that Wilson

complained to them that the restricted-smoking policies were not

being enforced. Specifically, Wilson complained that inmates in

his dorm kept butt cans by their beds, where they smoked in

violation of the posted policy. Warden Lensing replied that they

did not plan to change their policy of allowing smoking in the

living areas of the dorms. Stalder denied relief, stating that

the warden's position was acceptable to him. Although the policy

was revised on June 29, 1994, after Wilson filed suit, appellees'

summary-judgment materials do not contradict Wilson's assertion

that this policy is not being enforced. This assertion has been

brought to appellees' attention by Wilson's memorandum and other

material he filed in support of his summary-judgment motion.

Because there are genuine issues relative to material facts, the

district court should not have granted summary judgment to

appellees. See Sanders v. English,

.

REVERSED AND REMANDED.