MEMORANDUM^[**]

Eric Schroeder, a Hawaii state prisoner, appeals pro se the district court's grant of defendants' motion for summary judgment based on a finding of qualified immunity in his 42 U.S.C. Sec. 1983 action. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

Government officials are entitled to qualified immunity where the right which the officials have allegedly violated was not clearly established at the time the conduct occurred such that a reasonable person would have known that the conduct in question was unlawful. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); ACT UP!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). To establish that a right was clearly established, plaintiff " 'must show that the particular facts of [plaintiff's] case support a claim of clearly established right.' " Doe v. Petaluma City Sch. Dist., No. 94-15917, slip op. 5251, 5256 (9th Cir. May 12, 1995) (citing Backlund v. Barnhart, 778 F.2d 1386, 1389 (9th Cir.1985)) (emphasis original). "Absent binding precedent," we " 'look to all available decisional law including decisions of [other courts] to determine whether the right was clearly established.' " Id. (citations omitted).

A. Exposure to Environmental Tobacco Smoke Claim

In his first and second causes of action, Schroeder stated that defendants were deliberately indifferent to his existing medical needs by exposing him to environmental tobacco smoke ("ETS") when they housed him with smoking cellmates during 1990 and up to March 1991.^[1] Schroeder contends that the district court erred by granting defendants qualified immunity on these claims. This contention lacks merit.

At the time of the conduct in question, our decisions had not clearly established that it was a violation of the Eighth Amendment to house a prisoner with a smoker where the prisoner had a pre-existing medical condition which would be affected by exposure to ETS. In 1981, we concluded that assigning a prisoner with a throat tumor to a cell with a heavy smoker arguably stated an Eighth Amendment claim of cruel and unusual punishment. Franklin v. Oregon, 662 F.2d 1337, 1346-47 (9th Cir.1981). In February 1991, citing Franklin, we stated that "[i]n this circuit, it is established that exposure to ETS by people who are sensitive to ETS because of pre-existing conditions may constitute cruel and unusual punishment." McKinney v. Anderson, 924 F.2d 1500, 1504 (9th Cir.) ("McKinney I"), vacated and remanded sub nom. Helling v. McKinney, 502 U.S. 903 (1991) ("McKinney II"), reinstated, 959 F.2d 853 (9th Cir.1992) ("McKinney III"), aff'd and remanded sub nom. Helling v. McKinney, 113 S.Ct. 2475 ("McKinney IV"), remanded on remand, 5 F.3d 365 (9th Cir.1993).

In October 1991, however, we stated that "prison officials' qualified immunity ... bars [a prisoner's] claim for money damages" regarding the prisoner's assignment to a cell with a heavy smoker despite the prisoner's pre-existing allergy to cigarette smoke. Johnson v. Moore, 948 F.2d 517, 522 n. 3 (9th Cir.1991). Johnson illustrates that this court did not consider the right to be free from exposure to ETS to be clearly established prior to October 1991. Therefore, although Johnson was decided a few months after the conduct in question, we conclude that it demonstrates that the right to be free from exposure to ETS was sufficiently unclear during 1990 and 1991 such that a reasonable government official would not have known what specific conduct was illegal.^[2]

Therefore, we conclude that the district court correctly granted defendants qualified immunity on Schroeder's first and second causes of action. See Doe, No. 94-15917, slip op. at 5256.^[3]

In support of his fourth cause of action, Schroeder submitted a declaration stating that "during most of March 1991," he slept on the "cold" concrete floor of his cell "in an air-conditioned climate around the low 50 degree range."^[4] Schroeder contends that the district court erred by granting defendants' motion for summary judgment on this claim. This contention lacks merit.

We have held that it did not violate a prisoner's Eighth Amendment rights to require a prisoner to sleep on the floor of his cell without a mattress for one night. See Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir.1988), vacated on other grounds and remanded, 493 U.S. 801 (1989), modified on remand, 919 F.2d 573 (9th Cir.1990), vacated on other grounds and remanded, 504 U.S. 25, remanded on remand, 966 F.2d 533 (9th Cir.1992). Although the Supreme Court has stated that a condition of confinement which does not violate the Eighth Amendment when it exists for just a few days may constitute a violation when it exists for "weeks or months," see Hutto v. Finley, 437 U.S. 678, 686-87 (1978), this observation does not provide clear guidance to prison officials as to how much time must pass before requiring a prisoner to sleep on the floor of a cell without a mattress may constitute an Eighth Amendment violation.

Our holding that a prison official's failure to provide a mattress or bed for a pre-trial detainee for two nights which required the detainee "to sleep on the cement floor" violated the Fourteenth Amendment rights of a pre-trial detainee does not support Schroeder's argument that he had a similar, clearly-established right under the Eighth Amendment. See Thompson v. City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir.1989). While it is true that we look to the Eighth Amendment when determining the Fourteenth Amendment rights of pre-trial detainees,^[5] because the Eighth Amendment permits the government to impose some forms of punishment on prisoners whereas the Fourteenth does not allow any punishment of pre-trial detainees, the Eighth Amendment protects a narrower class of interests than does the Fourteenth. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1978) (discussing relationship between Eighth and Fourteenth Amendments); Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991) (same), cert. denied, 502 U.S. 1074 (1992); cf. Doe, No. 94-15917, slip op. at 5261 (availability of theory of liability under Title VII, which prohibits discrimination in employment, does not demonstrate clearly established right to utilize that theory of liability under Title IX, which prohibits discrimination in education).

Where, as here, there is no binding precedent from our circuit, we examine "all available decisional law ... to determine whether the right was clearly established." Doe, No. 94-15917, slip op. at 5256 (citations and internal quotation marks omitted). In the majority of decisions where the court considered whether failure to provide a mattress to an inmate violated the Eighth Amendment, the failure was accompanied by other factors--e.g., extreme cold, lack of sanitary conditions, solitary confinement, inadequate clothing, or improper diet. See, e.g., Sellars v. Beto, 409 U.S. 968, 969 (1972) (solitary confinement, in cell 24 hours a day, only fed bread and water, no mattress); Rodgers v. Thomas, 879 F.2d 380, 385 (8th Cir.1989) (no toilet or sink, clothing confiscated, only allowed to shower once every five days, no mattress); French v. Owens, 777 F.2d 1250, 1253 (7th Cir.1985) (shackled to bed, sometimes stripped, denied right to use toilet, had to lie in own excrement, no mattress), cert. denied, 479 U.S. 817 (1986). Because the "particular facts" in these decisions are vastly more egregious than those which Schroeder alleges, these decisions do not support his claim that there was a clearly established right under the Eighth Amendment to be provided with a mattress when required to sleep on the floor. See Doe, No. 94-15917, slip op. at 5256.^[6]

Because we are unable to conclude that the particular facts which constitute Schroeder's fourth cause of action support a claim of clearly established right, we conclude that the district court properly granted defendants qualified immunity on this claim. See Doe, No. 94-15917, slip op. at 5256.^[7]

AFFIRMED.

I dissent.