IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50045 Summary Calendar

RAYMOND BURLESON,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS CORRECTIONAL INDUSTRIES; GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JOHN BENESTANTE, Assistant Director of Industry at TDCJ-ID, Industry Headquarters; NOLAN GLASS, Plant Manager, Stainless Steel Plant, Boyd Unit, TDCJ-ID; BILLY WEST; JOE WHITE,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CA-335

November 14, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Raymond Burleson appeals the Magistrate Judge's summary

judgment dismissal of his

claims alleging that

defendants Nolan Glass, Nilly West, and Joe White were deliberately

indifferent to his health and thereby violated his Eighth Amendment

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. right to be free from cruel and unusual punishment. Specifically,

Burleson claims that the defendants deliberately failed to inform

him and the other welders at the Boyd Unit where he worked that

thoriated tungsten steel welding electrodes used at the plant

contained known carcinogens and that the defendants allowed

Burleson and other inmate welders to work without the protective

equipment specified by the Occupational and Safety Health

Administration as necessary for such work. Burleson also asserts

that he was not made aware that the materials with which he was

working were hazardous because the Material Safety Data Sheet

(MSDS) was not made available to inmate workers as required by OSHA

regulations.

We review a grant of summary judgment de novo, applying the

same standard as the district court.1 To establish an Eighth

Amendment violation regarding conditions of confinement, Burleson

is required to establish, first, that the deprivation alleged was

sufficiently serious, i.e., each defendant's conduct resulted in

the denial of "the minimal civilized measure of life's

necessities," including "conditions which pose an unreasonable risk

of damage to an inmate's future health."2 This "risk must be of

1 Holtzclaw v. DSC Communications Corp.,

(5th Cir. 2001). 2 Herman v. Holiday,

(5th Cir. 2001).

2 such a level that today's society would not tolerate it."3 Second,

Burleson is required to establish that the defendants acted with

deliberate indifference to Burleson's health or safety.4

Deliberate indifference requires a showing that each defendant (1)

was aware of facts from which an inference of excessive risk to the

prisoner's health or safety could be drawn and (2) that he actually

drew an inference that such potential for harm existed.5 "'Under

exceptional circumstances, a prison official's knowledge of a

substantial risk of harm may be inferred by the obviousness of the

substantial risk.'"6

After reviewing the record, we conclude, first, that the

Magistrate Judge erred in concluding that there are no genuine

issues of material fact with respect to whether Burleson was

exposed to levels of carcinogens sufficient to pose an unreasonable

risk of serious damage to his future health.7 Summary judgment

evidence provided by Burleson creates a genuine issue as to whether

the use of thoriated tungsten steel welding electrodes poses a

3

4

5 Id.; see also Farmer v. Brennan,

(1994) ("But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment."). 6 Harris v. Hegmann,

(5th Cir. 1999) (quoting Reeves v. Collins,

(5th Cir. 1994)). 7 See Herman,

.

3 significant health risk which mandates the use of protective

equipment.

Second, the evidence presented on summary judgment also

establishes that there are genuine issues of material fact as to

the deliberate indifference allegedly demonstrated by each

defendant. Glass and West admitted that they were familiar with

the contents of the MSDS. Moreover, the evidence presented by

Burleson raises a genuine issue as to whether Burleson and other

inmate welders were made aware of the radioactive nature of the

materials they were using or of the risks described in the MSDS,

whether Burleson actually wore protective gear while welding,

whether all the welding rods they used were radioactive, and

whether there was adequate ventilation in the welding area during

the period in which Burleson worked there. These fact issues

preclude summary judgment.

Burleson is also required to show causation to establish each

defendant's section 1983 liability for a violation of his Eighth

Amendment rights.8 The record evidence discloses a genuine issue

of material fact on this requirement. We conclude that the

Magistrate Judge erred in granting summary judgment for the

defendants on the grounds that the record revealed no evidence of

8 Doe v. Rains County Indep. Sch. Dist.,

(5th Cir. 1995).

4 an Eighth Amendment violation and that Burleson raised only

conclusory allegations of causation.

However, we may also affirm a summary judgment on any ground

raised by the movant below and supported by the record, even if it

is not the ground relied on by the district court.9 Glass, West,

and White all raised a qualified immunity defense, which the

district court did not address.10

Applying our qualified immunity analysis, we note first that

Burleson alleged a violation of a clearly established

constitutional right: the Eighth Amendment right to be free from

conditions of confinement which pose an unreasonable risk of damage

to a prisoner's health.11 Second, we must determine whether each

defendant's conduct was objectively reasonable in light of clearly

established law at the time that the challenged conduct occurred,

i.e., whether "'all reasonable officials in the defendant's

circumstances would have then known that the defendant's conduct

violated the' plaintiff's asserted constitutional or federal

statutory right."12 In the context of Burleson's Eighth Amendment

9 Holtzclaw,

. 10 See generally Cozzo v. Tangipahoa Parish Council-President Gov't,

(5th Cir. 2001). 11 See Farmer,

; Helling v. McKinney,

(1993); Herman,

; Jacobs v. W. Feliciana Sheriff's Dep't,

(5th Cir. 2000). 12 Cozzo,

(quoting Thompson v. Upshur County,

, 457 (5th Cir. 2001)).

5 claim, we hold the defendants to the standard of subjective

deliberate indifference in determining whether their conduct was

objectively reasonable.13 Resolving all genuine factual

controversies and drawing all inferences in favor of Burleson, we

conclude that there is sufficient evidence in this record for a

reasonable jury to conclude that each defendant acted with

deliberate indifference to significant risks to Burleson's health

such that their conduct was not objectively reasonable in light of

clearly established law at the time that Burleson worked as a

welder in the Boyd Unit. As discussed above, assuming that

Burleson was not made aware of the radioactive nature of the

materials he was using or of the risks described in the MSDS, that

Burleson was not required to and did not wear protective gear, that

all welding rods used by Burleson were radioactive, and that there

was inadequate ventilation in the welding area during the period in

which Burleson worked there, a reasonable jury could find that the

defendants' conduct in subjecting Burleson to these conditions was

deliberately indifferent to the risk to Burleson of future injury

from exposure to carcinogens and was not objectively reasonable.

Accordingly, summary judgment is not appropriate on the subject of

qualified immunity.

13 See Domino v. Tex. Dep’t. of Crim. Justice,

(5th Cir. 2001).

6 For the foregoing reasons, the summary judgment granted in

favor of defendants Glass, West, and White is REVERSED, and the

case is REMANDED for proceedings consistent with this opinion.

7