IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10428
Summary Calendar
JAMES YARCLAY,
Plaintiff-Appellant,
versus
JIM BOWLES, Sheriff; ET AL,
Defendants,
JIM BOWLES, Sheriff; STEVEN BOWERS, MD;
J. N. TRAUTMAN, Deputy; M. G. GIBSON, Deputy;
J. M. JAMESON, Deputy; T. L. WOODS, Deputy;
EDGAR MCMILLAN, Deputy Chief; DALLAS COUNTY, TX.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-579-AH
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February 10, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
James Yarclay appeals the grant of summary judgment in favor
of defendants in his 42 U.S.C. § 1983 civil rights action. In
his complaint, Yarclay alleged that the defendants violated his
constitutional rights by subjecting him to environmental tobacco
smoke (ETS) and then segregating him in retaliation for his
complaints concerning the 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this opinion should not be published and is not precedent except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.
No. 99-10428
-2-
The smoking policy of the Dallas County jail provides that,
upon written request, a non-smoking inmate be transferred from
the general jail population to a smoke-free cell for legitimate
health reasons. Yarclay contends that, by refusing to either ban
smoking altogether or restrict the areas where smoking can occur,
the defendants are deliberately indifferent to the dangers of
ETS. The Supreme Court has held that the exposure of inmates,
with deliberate indifference, to unreasonably high levels of ETS
while incarcerated states a cause of action under the Eighth
Amendment. Helling v. McKinney, 509 U.S. 25, 35 (1993).
However, since the Dallas County jail policy allows for the
movement of prisoners who complain that the ETS is affecting
their health, it appears to meet the Supreme Court’s requirement
that prison authorities take steps to minimize the risk of
exposure to ETS by non-smokers. Accordingly, Yarclay has failed
to show that this policy is deliberately indifferent to his
medical needs.
Yarclay argues that his placement in solitary confinement
was unconstitutional because he was placed there solely as
punishment for complaining about the ETS. The defendants
provided summary judgment evidence demonstrating that, because
the prison does not have sufficient housing facilities to
separate smoking and non-smoking inmates, they have to transfer
non-smoking inmates who complain about ETS from the general jail
population to a single cell. Yarclay failed to counter this
evidence.
No. 99-10428
-3-
If the moving party meets the initial burden of establishing
that there is no genuine fact issue, the burden shifts to the
nonmoving party to produce evidence of the existence of a genuine
issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The nonmovant cannot satisfy his summary-judgment burden
with conclusional allegations, unsubstantiated assertions, or
only a scintilla of evidence. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994)(en banc).
Instead of pointing to evidence which supports his
contention, Yarclay argues that he should have been allowed
discovery to determine whether the reasons proffered by the
prison authorities for not instituting a ban on cigarettes were
legitimate. However, Yarclay has failed to adequately brief his
argument concerning the need for discovery and has thus abandoned
this argument. See United States v. Heacock, 31 F.3d 249, 258
(5th Cir. 1994).
Yarclay has failed to meet his summary judgement burden.
Accordingly, the magistrate judge’s order of summary judgment for
defendants is AFFIRMED.
AFFIRMED.