UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6884
DWAYNE MANNING,
Plaintiff - Appellant,
versus
LAMBERT; REID; DULA; ROGERS; GREEN; CUTTER;
BRENIZE; GRAY; NURSE SMITH; BORROC; GOURIOUX;
ANDREWS; COX; CRUMP; JOHNSON; MOST; HOLLIER;
NAVALANEY; SINES; HART; BERNAZOLLI; LEWIS;
EZEKIEL; FINGER; BOGDAN; ASBOURN; SHEARIN;
UNITED STATES DEPARTMENT OF JUSTICE; BUREAU OF
PRISONS; JOHN DOES; JANE DOES,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-03-2057-AW)
Submitted: December 20, 2004 Decided: July 20, 2005
Before WILLIAMS, KING, and SHEDD, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Dwayne Manning, Appellant Pro Se. Matthew Wayne Mellady, UNITED
STATES DEPARTMENT OF JUSTICE, Annapolis Junction, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Dwayne Manning, a federal inmate, filed this Bivens*
action alleging that he has suffered harm since 1999 and will
suffer future harm from exposure to environmental tobacco smoke
(“ETS”) during his incarceration at FCI Cumberland. He alleged
violations of his Eighth Amendment rights, as well as a claim under
the Federal Tort Claims Act. In his complaint and in his
declaration submitted in response to Defendants’ motion for summary
judgment, Manning averred that staff and inmates routinely violate
the prison’s smoking policy and that he is suffering health
consequences as a result of the high level of ETS to which he is
exposed. He also stated that prison guards do not enforce the
smoking policy. The district court granted summary judgment, and
Manning appeals.
Summary judgment is only appropriate when there is no
genuine issue of material fact given the parties’ burdens of proof
at trial. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). In determining whether the
moving party has shown that there is no genuine issue of material
fact, a court must assess the factual evidence and all inferences
to be drawn therefrom in the light most favorable to the non-moving
party. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th
*
Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971).
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Cir. 1996). We review the grant of summary judgment de novo.
Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997).
After a careful review of the record, we find that the
district court inappropriately credited the Defendants’ evidence
and discredited Manning’s evidence. Viewing the evidence in the
light most favorable to Manning, we find that he has raised
material issues of fact as to whether he was being exposed to
“unreasonably high levels of ETS” under Helling v. McKinney, 509
U.S. 25, 35 (1993), whether he suffered from a serious injury or
medical need under Estelle v. Gamble, 429 U.S. 97, 106 (1976), and
whether Defendants exercised ordinary diligence in enforcing the
smoking policy. Accordingly, we reverse the district court’s grant
of summary judgment and remand for further proceedings. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
REVERSED AND REMANDED
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