Bean v. Farwell

212 F. App'x 674

Opinion

MEMORANDUM

**

Ivan O. Bean, a Nevada state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that prison officials exposed him to environmental tobacco smoke (“ETS”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir.1995), and we affirm.

The district court properly granted summary judgment on Bean’s claim that prison staff violated his Eighth Amendment rights by exposing him to unreasonably high levels of ETS, because the record shows that prison officials made many efforts to appease Bean’s concerns about second hand smoke, including moving Bean to a cell with a non-smoking cell mate, and instituting smoking policies that attempt to limit inmates’ exposure to ETS. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards excessive risk to inmate health or safety).

The district court properly granted summary judgment on Bean’s racial discrimination claim because his unsupported allegations are not sufficient to defeat a motion for summary judgment. See Angel v. Seattle-First Nat’l Bank, 653 F.2d 1293, 1299 (9th Cir.1981) (“[a] motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data”).

AFFIRMED.

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