UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60674

GEORGE T. CALLICUTT,

Plaintiff-Appellant,

versus

JAMES ANDERSON; FRED CHILDS; I.A. GILMORE; TONY COMPTON; TERRY HOLLOWAY; NATHANIEL CANNON; JAMES HOLMAN; NORS KENNEDY, Captain; CALVIN PHIPPS, Captain; EARNEST LEE; LETHA NATHAN, Captain,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (3:00-CV-46-LN) _________________________________________________________________ September 11, 2002

Before REAVLEY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

At issue is whether the district court erred in dismissing

this in forma pauperis

action by George Callicutt,

Mississippi prisoner # 84125, following a bench trial and based on

its conclusion that prison officials had not acted with deliberate

indifference. AFFIRMED.

I.

Callicutt sued those officials for claimed Eighth Amendment

violations because he was exposed to environmental tobacco smoke

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. (ETS). After an unsuccessful appeal from the denial of Callicutt’s

summary judgment motion (dismissed for lack of jurisdiction), see

Callicutt v. Anderson, No. 01-60038 (5th Cir. 21 August 2001)

(unpublished), the parties consented to proceed before a magistrate

judge.

Following a bench trial, the complaint was dismissed with

prejudice, pursuant to

(e)(2)(B)(ii). Callicutt v.

Anderson, No. 3:00-CV-46-LN (S.D. Miss. 11 July 2001) (unpublished)

(Final Judgment). The court found: all witnesses testified

truthfully; although prison policy prohibited smoking in

Callicutt’s unit, the single guard assigned there during a shift

could not always prevent prisoners from violating the rule;

Callicutt “ha[d] been exposed to some level of second hand smoke”,

but Defendants’ expert testified Callicutt’s medical conditions had

not demonstrated he had been harmed by such exposure; when a

prisoner was caught smoking, he was issued a Rules Violation

Report. Callicutt v. Anderson, No. 3:00-CV-46-LN, slip op. at 2-3

(S.D. Miss. 11 July 2001) (unpublished). Accordingly, the court

held: prison officials did not act with deliberate indifference,

because they implemented a policy designed to eliminate ETS that

was enforced to the best of the guards’ ability given the staffing

levels.

.

II.

We review a § 1915(e)(2) dismissal for abuse of discretion.

See Richardson v. Spurlock,

(5th Cir. 2001). (In

this regard, and because the dismissal follows a bench trial,

2 factual findings are reviewed for clear error; issues of law, de

novo. See FED. R. CIV. P. 52(a); Seal v. Knorpp,

(5th Cir. 1992).) Further, Callicutt certified that no trial

transcript was necessary and does not contest the factual findings.

Therefore, only the conclusions of law are at issue.

A two-prong test is used to determine whether ETS exposure

violates a prisoner’s Eighth Amendment rights. He must: (1) prove

he is “being exposed to unreasonably high levels of ETS”; and (2)

show prison officials demonstrated “deliberate indifference” to his

plight. Helling v. McKinney,

(1993).

First, sporadic and fleeting ETS exposure, even though it

results in discomfort such as coughing and nausea, does not

constitute “unreasonably high levels of ETS”. See Richardson,

.

Second, deliberate indifference requires a finding of

“obduracy and wantonness, not inadvertence or error in good faith”.

Whitley v. Albers,

(1986).

[A] prison official cannot be found liable under the Eighth Amendment ... unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer v. Brennan,

(1994). In evaluating

deliberate indifference to ETS, the following factors should be

considered: the adoption of a smoking policy; the administration

of that policy; and “the realities of prison administration”. See

Helling,

(emphasis added).

3 The magistrate judge did not abuse his discretion. Prison

policy prohibits smoking in Callicutt’s unit; and the court found

both that guards did not ignore smoking prisoners and that they

“enforced [the policy] to the best of their ability”. Callicutt v.

Anderson, No. 3:00-CV-46-LN, slip op. at 3 (S.D. Miss. 11 July

2001) (unpublished). In the light of this finding following a

bench trial in which the magistrate judge could best evaluate the

credibility of the witnesses, and especially because Callicutt has

not challenged those findings, it could not be an abuse of

discretion for the magistrate judge to conclude Callicutt failed to

prove deliberate indifference and, therefore, to dismiss his

complaint.

III.

For the foregoing reasons, the dismissal is

AFFIRMED.

4