98 F3d 1345 Granito v. A Lewis W Cpo

98 F.3d 1345

Gary Anthony GRANITO, Plaintiff-Appellant,
v.
Samuel A. LEWIS, Director; W Cupps, CPO; Sherry Dahlke,
Counselor; Stewart Miles, CPS; Terry L Stewart,
Deputy, Director of Arizona Department
of Corrections, Defendants-Appellees.

No. 95-15581.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 19, 1996.
Decided Oct. 4, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.


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1

Before: KOZINSKI and LEAVY, Circuit Judges, and SCHWARZER,* District Judge.

2

MEMORANDUM**

3

Appellant did not point to a genuine dispute of material fact about the reasonableness of the response to his complaints of exposure to Environmental Tobacco Smoke (ETS). Although prison officials may violate the Eighth Amendment if they knowingly expose inmates to unreasonably dangerous levels of ETS, see Helling v. McKinney, 509 U.S. 25, 35 (1993), they may not be held liable if they respond reasonably to the risk, even if harm is not ultimately averted. See Farmer v. Brennan, 114 S.Ct. 1970, 1974 (1994).

4

Here, defendants presented evidence that there were nonsmoking tents within the prison and that appellant could move there. Affidavit of Stuart Miles, ER at 104. Appellant acknowledges that he could have moved to the tents, but claims the tents were not really a smoke-free environment. Affidavit of Anthony Granito, ER at 112. But appellant's own affidavit contains only the conclusory allegation that prisoners "smoke frequently" in the nonsmoking tents unsupported by factual data--such as how appellant, who has never lived in the tents, knows this. This does not create an issue of material fact. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993). Appellant also presented the affidavit of an inmate who once lived in a nonsmoking tent stating that "[m]any inmates smoke in the tents." Affidavit of Enrico Genovese, ER at 117. But this does not disclose whether the ETS in the nonsmoking tents rose to dangerous levels, or whether it occurred at the time the defendants should have known ETS was dangerous. See Helling, 509 U.S. at 36.

5

The district court's grant of summary judgment is AFFIRMED.

*

The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3