ORDER AND JUDGMENT*
GREGORY A. PHILLIPS, Circuit Judge.
Plaintiff Byron Smith appeals the district court's grant of summary judgment on his Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), claim in favor of the defendants, who are employees and administrators at the Federal Bureau of Prisons and the United States Penitentiary at Leavenworth.
In 2003, "Smith received a work order from his supervisor, defendant Jeffery Sinclair, to install a new light fixture in a closet in the prison's education department." Smith v. United States, 561 F.3d 1090, 1094 (10th Cir. 2009). A 1994 survey by the Ramsey-Schilling Consulting Group had documented the presence of asbestos in Leavenworth's education building and reported that the pipe insulation in this particular closet was damaged. Smith claims that defendant John Parent, Leavenworth's custodial services manager, told Smith he had written a memo prior to this work order warning prison officials not to let anyone in the classroom closet due to the damaged asbestos insulation.
The 2003 work order was approved by defendant Teresa Hartfield, the education administrator, and was sent to Sinclair by defendant Janet Durbin, a staff member in the education department.
Id.
After allowing Smith to conduct limited discovery, the district court granted summary judgment in favor of all defendants. First, it ruled the evidence taken in the light most favorable to Smith fell short of establishing an Eighth Amendment claim for cruel and unusual punishment. The court assumed defendants were previously aware of a low risk of asbestos exposure before the work order and were aware there was friable asbestos
"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). "When a defendant asserts qualified immunity at summary judgment," the plaintiff has the burden "to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established." Id. We maintain the discretion to decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236.
Smith argues on appeal that defendants did violate his Eighth Amendment rights and that these rights were clearly established. We need not address the first prong because we find no authority from the Tenth Circuit or the Supreme Court that would have given defendants notice that their actions would violate Smith's rights. A constitutional right is clearly established when, at the time of the alleged violation, the contours of the right were so clear that a reasonable official would understand that his actions violated that right. Walker v. City of Orem, 451 F.3d 1139, 1151 (10th Cir. 2006). The question of whether a right is clearly established must be answered "in light of the specific context of the case, not as a broad general proposition." Morris v. Noe, 672 F.3d 1185, 1196 (10th Cir. 2012) (internal quotation marks omitted). In order for the law to be clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the [right] to be as the plaintiff maintains." Eidson v. Owens, 515 F.3d 1139, 1148 (10th Cir. 2008) (internal quotation marks omitted).
In Helling v. McKinney, the Supreme Court held that the Eighth Amendment protects prisoners from an official's deliberate indifference to conditions posing an unreasonable risk of serious damage to the prisoner's future health. 509 U.S. 25, 33-35 (1993). At issue in Helling was an inmate's exposure to environmental tobacco smoke in the absence of a present physical injury. The Court held an inmate must show he was "exposed to unreasonably high levels" of environmental toxins. Id. at 35. To violate the Eighth Amendment, the inmate must show the risk he complains of is one that "society considers . . . so grave that it violates contemporary standards of decency to expose anyone unwillingly to such risk." Helling, 509 U.S. at 36. ("In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.").
Smith cites no Tenth Circuit or Supreme Court cases in 2003 holding that a limited exposure to asbestos dust for a few hours poses such an objectively serious risk of future harm to offend contemporary standards of decency. Indeed, there is no such authority even today. Smith cites to an Eleventh Circuit decision, Powell v. Lennon, 914 F.2d 1459, 1461-64 (11th Cir. 1990), which denied qualified immunity to prison officials who forced an inmate to remain in his cell filled with large quantities of friable asbestos for six months, ignoring the inmate's repeated requests to be moved to an asbestos-free environment. He also cites a Ninth Circuit decision, Wallis v. Baldwin, 70 F.3d 1074, 1075-77 (9th Cir. 1995), which denied qualified immunity where an inmate was required to work for forty-five hours in an unventilated attic containing friable asbestos scattered all around from broken and damaged asbestos-insulated pipes, despite a prior order from the state fire marshal to remove the material hanging from the damaged pipes.
We agree with the district court that the facts of Powell and Wallis are not sufficiently analogous to the extremely limited exposure of only a few hours here. See Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083 (2011) ("We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."); Eidson, 515 F.3d at 1148 (stating that to be clearly established law, facts of cases need not be identical, but they must be sufficiently analogous). Both Powell and Wallis involved an inmate's prolonged exposure to large amounts of friable asbestos, whereas Smith was exposed only to a small quantity from one damaged pipe for just a few hours. Moreover, Ninth and Eleventh Circuit law are not controlling precedent for purposes of qualified immunity. Our survey of authority from other circuits confirms the district court's conclusion that the weight of authority does not clearly establish a right to be free from even a few hours of exposure to friable asbestos.
We conclude that Smith did not meet his burden to show that the constitutional right he claims was violated was clearly established. The judgment of the district court is affirmed.
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