[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT

FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

N o . 06-10813

J u n e 30, 2006

N o n - A r g u m e n t Calendar T H O M A S K. KAHN

CLERK

D . C. Docket No. 01-00044-CV-5

F R E D E R IC K BROWN,

Plaintiff-Appellee,

versus

GEORGE SMITH, Warden,

in his individual and official capacity,

JIM WETHERINGTON, Commissioner of the Georgia

Department of Corrections, in his individual and

official capacity,

STEVE ROBERTS, Deputy Warden, in his individual

and official capacity,

RANDALL HOLDEN, Deputy Warden of Care and

Treatment,

in his individual and official capacity,

JACK JONES, Chief Counselor, in his individual and

official capacity,

HARRY RONEY, Warden Administrative Assistant,

in his individual and official capacity,

TONY HOWERTON, Warden, in his individual and

official capacity,

PAUL GRIECO,

JAMES L. THRIFT

Defendants-Appellants,

JO H N HEAD, Defendant.

A p p e al from the United States District Court fo r the Southern District of Georgia (J u n e 30, 2006) B efo re CARNES, WILSON and PRYOR, Circuit Judges.

P E R CURIAM: D efen d an ts appeal from the district court's January 13, 2006, order denying th eir second motion for summary judgment, which claimed qualified immunity on P lain tiff Frederick Brown's 42U.S.C. § 1983 claims.1 We affirm.

"A district court's denial of summary judgment based on qualified immunity is reviewed de novo, construing all facts and making all reasonable inferences in th e light most favorable to the non-moving party." Tinker v. Beasley, 429 F.3d 1 3 2 4 , 1326 (11th Cir. 2005) (per curiam). "For the purposes of an interlocutory a p p e a l from the denial of qualified immunity, we accept the district court's factual d e te rm in a tio n s . . . supplementing them where necessary with additional e v id e n tia ry findings of our own from the record." Valdes v. Crosby, 11th Cir. 2 0 0 6 ,F.3d, slip op. at 2246 (No. 05-13065, May 31, 2006). The qualified im m u n ity inquiry is tripartite: "(1) the alleged conduct must fall within the scope o f the discretionary authority of the actor; (2) if it does, we must then determine w h e th e r that conduct violates a constitutional right; (3) if so, we must inquire w h e th e r the asserted right was clearly established at the time of the alleged v io la tio n ." Tinker, 429 F.3d at 1326.2 H ere, it is uncontroverted that the actions about which Brown complains w ere within the scope of Defendants' discretionary authority. As for the violation o f a constitutional right, we recognized in Kelley v. Hicks that "a prisoner can state a cause of action under the Eighth Amendment for exposure to ETS by `alleging th at [prison officials] have, with deliberate indifference, exposed him to levels of E T S that pose an unreasonable risk of serious damage to his future health.'" 400 F .3 d 1282, 1284 (11th Cir. 2005) (per curiam) (quoting Helling v. McKinney, 509 U .S . 25, 35, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22 (1993)). To prove such a claim , the prisoner must establish certain objective and subjective elements. See id .; Helling, 509 U.S. at 35, 113 S. Ct. at 2481-82. He must show "that he himself is being exposed to unreasonably high levels of ETS" (the objective element) and "th at prison authorities demonstrated a `deliberate indifference' to his plight" (the su b jectiv e element). Hicks, 400 F.3d at 1284. The district court erred in denying q u alified immunity, Defendants argue, because Brown's summary judgment ev id en ce was insufficient to implicate the objective and subjective components of an Eighth Amendment claim for ETS exposure. In other words, Defendants c o n te n d that Brown's allegations, when considered in light of the summary ju d g m en t evidence, were insufficient to assert a constitutional violation. See S a u cier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2 0 0 1 ) ("If no constitutional right would have been violated were the allegations e sta b lis h e d , there is no necessity for further inquiries concerning qualified i m m u n i t y ." ) .

W e disagree. The Eighth Amendment violation described in Helling and H ic ks is distinct from the Eighth Amendment violation we described in Brown I. U n d e r Helling, an Eighth Amendment violation occurs when prison officials, a ctin g with deliberate indifference, expose a prisoner to levels of ETS that pose an u n reaso n ab le risk of serious damage to his future health. 509 U.S. at 35, 113 S. Ct. at 2481. The Eighth Amendment violation we described in Brown I occurs when state caretakers intentionally fail to follow a physician's prescribed course of treatm en t for an inmate's serious medical condition. 45 Fed. Appx. 885. Brown, w e explained, "alleges that [Defendants] intentionally interfered with his p h ysician s' request that he be housed in an environment free of ETS by continually a n d intentionally placing him in environments where ETS was common." Id.

Brown presented summary judgment evidence supportive of these allegations, in clu d in g : (1) an "Inmate Physical Profile" indicating that he should be not be assig n ed to any duty "requiring exposure to dust or other allergenic materials[,] in c lu d in g smoke"; (2) a July 20, 1992, medical memorandum recommending that B ro w n "be placed in a room with a non-smoker, if one is available"; (3) a July 30, 2 0 0 1 , memorandum from the medical department to the deputy warden of care and tr ea tm e n t, stating that one of Brown's limitations is the need for a "Smoke free en v iro n m en t indefinitely"; (4) medical records of Brown's severe asthma problems an d treatment; (5) declarations from prisoners identifying themselves as Brown's cellm ates and stating that they are smokers; (6) numerous declarations from p r is o n e r s stating that Ware State Prison's "no-smoking inside" policy was freq u en tly not enforced; (7) copies of grievance proceedings in which Brown co m p lain ed that second-hand smoke was aggravating his asthma and making it d if fic u lt for him to breathe; (8) responses by prison officials stating that medical o fficials are aware of Brown's asthma, that Ware State Prison does not allow sm o k in g in any of its buildings, and that Brown has been assigned to a cell with a n o n -sm o k er; (9) replies by Brown stating that the no-smoking policy is frequently v io lated ; and (10) letters from Brown to prison officials complaining about o ccasio n s when he was forced to room with a "known violator of the no smoking in d o o r[s] policy," and when another prisoner who smoked was moved into B r o w n 's cell. Although Defendants also produced evidence in their favor, such as d eclaratio n s about the hundreds of disciplinary actions issued to prisoners for sm o k in g violations, and a statement that Ware State Prison exceeded air quality stan d ard s set by the American Correctional Association, we must view the ev id en ce in the light most favorable to Brown, drawing all reasonable inferences in h is favor. See Behrens, 516 U.S. at 309, 116 S. Ct. at 840. In doing so, we agree w ith the district court that genuine issues of material fact precluded summary ju d g m en t for Defendants on the issue of whether their alleged conduct violated a co n stitu tio n al right.3 Likewise, the district court properly rejected Defendants' claim that they were not on notice that their alleged conduct violated Brown's co n stitu tio n al rights, for in Brown I we described the right at issue as "clearly estab lish ed ." 45 Fed. Appx. 885; see, e.g., Young v. City of Augusta, Ga., 59 F.3d 1 1 6 0 , 1169 n.17 (11th Cir. 1995) ("The Eighth Amendment prohibits state caretak ers from intentionally delaying medical care or knowingly interfering with treatm en t once prescribed."). Accordingly, denial of Defendants' second motion fo r summary judgment on the basis of qualified immunity was proper, and we affirm the decision of the district court.

A F F IR M E D .

1 In 2001, Brown, an inmate then located at Ware State Prison, filed suit pro se against Defendants under 42U.S.C. § 1983, alleging that Defendants had exhibited deliberate indifference to his serious medical needs by continually exposing him to environmental tobacco smoke ("ETS"), which aggravated his preexisting chronic asthma and various other ailments.

2 Brown contends that this appeal is not properly before us because it is not an appeal from a final order, and because we previously vacated a dismissal of Brown's claims on the basis of qualified immunity. See Brown v. Smith ("Brown I"), 45 Fed. Appx. 885 (11th Cir. 2002) (per curiam) (unpublished table decision). These contentions are without merit. We previously issued an order in this case finding the district court's January 13, 2006, order to be immediately appealable, "because the determination that genuine issues of material fact preclude summary judgment is itself a conclusion of law." See, e.g., McDaniel v. Woodard, 886 F.2d 311, 313 (11th Cir. 1989). Likewise, Brown I is not necessarily dispositive here because, unlike with a motion to dismiss, on summary judgment "the plaintiff can no longer rest on the pleadings . . . and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the [qualified immunity] inquiry." Behrens v. Pelletier, 516 U.S. 299, 309, 116 S. Ct. 834, 840, 133 L. Ed. 2d 773 (1996); see Oladeinde v. City of Birmingham, 230 F.3d 1275, 1289 (11th Cir. 2000) ("[B]ecause the complaint did not contain all of the relevant facts that were introduced both at summary judgment and at trial, this court's first opinion affirming the denial of qualified immunity did not establish the law of the case.").

3 We do not, however, mean to express any opinion on the ultimate merits of Brown's claim. See Mitchell v. Forsyth, 472 U.S. 511, 527-28, 105 S. Ct. 2806, 2816, 86 L. Ed. 2d 411 (1985) ("[A] claim of immunity is conceptually distinct from the merits of plaintiff's claim that his rights have been violated."); Marsh v. Butler County, Ala., 268 F.3d 1014, 1030 n.8 (11th Cir. 2001) (same).