Opinion
Case No. 5:19-cv-00366-TES-MSH
07-16-2020
BARRY GIBSON, Plaintiff, v. TINA ZANDERS, et al., Defendants.
REPORT AND RECOMMENDATION
Pending before the Court is Defendants' motion for summary judgment (ECF No. 26). For the reasons explained below, it is recommended that Defendants' motion be granted.
PROCEDURAL BACKGROUND
This case arises out of Plaintiff Barry Gibson's confinement at Washington State Prison ("WSP") and Central State Prison ("CSP"). Gibson alleges that his continued exposure to heavy environmental tobacco smoke ("ETS") at both WSP and CSP has caused him to suffer headaches and breathing problems and poses an unreasonable risk of serious damage to his future health. Notice of Removal Attach. 3, at 9-11, ECF No. 1-3. He further alleges that Defendants were deliberately indifferent to this risk in violation of the Eighth Amendment. Id. at 11. Gibson filed a pro se complaint in the Superior Court of Bibb County, Georgia, challenging the conditions of his confinement. Id. at 1. Defendants filed responsive pleadings and removed the action to this Court on September 11, 2019. Notice of Removal, ECF No. 1; Notice of Removal Attach. 2, ECF No. 1-2. Defendants moved for summary judgment (ECF No. 26) on May 28, 2020. The Court received Gibson's response (ECF No. 28) on June 11, 2020. Defendants filed a reply brief (ECF No. 29) on June 25, 2020. Defendants' motion for summary judgment is ripe for review.
DISCUSSION
Defendants move for summary judgment, arguing, inter alia, Gibson cannot show they violated his constitutional rights. Defs.' Br. in Supp. of Mot. for Summ. J. 8-12, ECF No. 26-1. The Court agrees, recommends granting summary judgment, and declines to address Defendants' other grounds. I. Undisputed Material Facts
Plaintiff failed to comply with Local Rule 56 by not filing a specific response to each numbered paragraph of Defendants' statement of material facts. See M.D. Ga. L.R. 56 ("Response shall be made to each of the movant's numbered material facts."). The purpose of this rule is to "protect[] judicial resources by making the parties organize the evidence rather than leaving the burden upon the district judge." Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (internal quotation marks omitted). Plaintiff has instead submitted "Additional Facts/Supporting Claims" which do not correspond to Defendants' numbered paragraphs. Pl.'s Additional Facts/Supporting Claims, ECF No. 28-1. The Court could simply deem admitted those "material facts contained in the [Defendants'] statement which are not specifically controverted by specific citation to particular parts of materials in the record." M.D. Ga. L. R. 56. Nevertheless, the Court has reviewed the entire record of the case, and if evidence in the record shows that a fact is disputed, the Court has drawn all justifiable inferences in Plaintiff's favor for purposes of summary judgment. Maxwell v. Brennan, No. 5:16-cv-572-MTT, 2018 WL 2072850, at *2 n.2 (M.D. Ga. May 3, 2018).
Gibson entered the Georgia Department of Corrections' ("GDOC") custody on May 18, 2016. Pl.'s Dep. Ex. 1, ECF No. 26-4. After originally being housed in the Georgia Diagnostic and Classification Prison, Gibson was transferred to Dodge State Prison ("DSP") on August 25, 2016. Id. Secondhand tobacco smoke was not a problem at DSP, and Gibson never filed a complaint or lawsuit at DSP. Pl.'s Dep. 54:17-55:3, ECF No. 26- 3. On February 20, 2018, however, Gibson transferred to WSP. Pl.'s Dep. Ex. 1. After a short period of time in a transition dorm, Gibson moved to the faith and character-based dorm at WSP. Pl.'s Dep. 23:12-22; Pl.'s Dep. Ex. 1. This dorm was a "cell house," meaning it consisted of two and three-man cells. Pl.'s Dep. 22:10-23. The smoke conditions at WSP were "pretty bad." Pl.'s Dep. 25:24. On November 1, 2018, he filed a grievance complaining that he was "constantly having difficulty breathing[,] dizziness, and headaches from breathing [secondhand] cigarette smoke [every day]." Pl.'s Dep. Ex. 7, ECF No. 26-6. He requested a smoke-free environment "and medical attention when requested" due to difficulty getting treatment. Id. The grievance was referred to Defendant Taylor, who is the Health Services Administrator at WSP. Taylor Decl. ¶¶ 2, 4, ECF No. 26-12. Taylor did not speak with Gibson about the grievance. Id. ¶ 5; Pl.'s Dep. 56:4-6. He reported to the counseling office that he could not "determine [Gibson's] complaint of [secondhand] smoke," but that Gibson could "always report to sick call as needed." Taylor Decl. ¶ 10; Defs.' Mot. for Summ. J. Attach. 13, at 1, ECF No. 26-13. On November 20, 2018, Gibson was transferred to CSP. Pl.'s Dep. Ex. 1. His grievance was denied on December 10, 2018. Defs.' Mot. for Summ. J. Attach. 13, at 1.
Secondhand smoke was worse at CSP than it was at WSP. Pl.'s Dep. 26:1. Gibson lived in an open dorm with fifty-six inmates, of whom thirty-five smoked. Id. at 26:7-12. He filed a grievance on November 26, 2018, complaining that there was a lot of secondhand smoke that made it difficult for him to breathe. Pl.'s Dep. Ex. 5, ECF No. 26-5. He also stated that his eyes were "constantly burning due to the smoke." Id. He said the smoke was harmful to his health and put him at risk for cancer. Id. He asked to be removed from the prison. Id. The grievance was reviewed by CSP's Warden, Defendant Bowen, who, after consulting with the Deputy Warden of Care and Treatment, Defendant Thomas, granted the grievance on January 24, 2019, and stated Gibson would be moved to a two-man cell when bed-space became available. Bowen Decl. ¶¶ 2, 19, ECF No. 26-11; Defs.' Mot. for Summ. J. Attach. 14, ECF No. 26-14. There are not "very many general population spots available in cell houses," so Bowen's decision had the effect of placing Gibson on a waiting list. Bowen Decl. ¶¶ 22-23. Unsatisfied with this response, Gibson sent a letter to Thomas, complaining that moving him to a two-man cell was insufficient because "the same problems exist all around with smoke." Pl.'s Resp. to Mot. for Summ. J. Ex. 5, ECF No. 28-6. He asked for a transfer closer to home, such as Phillips State Prison or Athens-Clarke County Prison. Id. Thomas responded that Gibson had to be at his current facility for one year before being allowed to transfer. Id.; Pl.'s Dep. 41:15-20.
Gibson also requested that Defendant Zanders—his assigned counselor—move him to a cell house. Pl.'s Dep. 28:24-29:11. According to Gibson, cell houses have "less smoke or no smoke," depending on the officers working there. Id. at 29:11-15. Zanders told him she could not move him but instructed him to ask his unit manager. Id. at 33:23-34:5. Gibson asked his unit manager, Defendant Woodson, but Woodson told him to "get out of his face" and that inmates smoked in every building. Id. at 29:17-23. Gibson then spoke with Defendant Spikes, the Deputy Warden of Security, who told Gibson it was up to Woodson to move him. Id. at 49:9-51:21. Gibson also submitted a written request to Zanders that he be moved to Phillips State Prison or Walker State Prison, which other inmates had told him had better conditions. Pl.'s Resp. to Mot. for Summ. J. Ex. 7, ECF No. 28-8; Pl.'s Dep. 34:23-38:1. On May 21, 2019, prior to ever being moved into a two-man cell, Gibson was transferred to Dooly State Prison. Pl.'s Dep. Ex. 1; Pl.'s Dep. 22:5-6. Gibson was assigned to a cell house at Dooly State Prison. Pl.'s Dep. 21:17-18, 22:15-19. He reports it has "a lot less smoke," but also states it is "hard sometimes" because other inmates "smoke like a train." Id. at 18:25-19:2, 53:3-4.
However, in a letter to the Bibb County, Georgia, Superior Court, Gibson stated the smoke was "5 times worse" at Dooly State Prison. Notice of Removal Attach. 3, at 69.
GDOC has a formal policy forbidding the "possession and consumption of tobacco products" in its facilities. Defs.' Mot. for Summ. J. Attach 15, at 1, ECF No. 26-15. Warden Bowen has submitted an affidavit, stating he has worked for the GDOC since 1996. Bowen Decl. ¶ 2. In his experience, while tobacco is forbidden, it has been present in every prison he ever worked, and, to his knowledge, occurs "to some extent" in every prison. Id. ¶ 5. He avers "it is impossible as a practical matter to prevent the introduction and use of all contraband in prison." Id. Nevertheless, while he was warden at CSP, officials took measures to "promote safety and health and curb tobacco possession and usage." Id. ¶ 7. These included searching inmates when they arrived at CSP; disciplining inmates possessing or using tobacco; conducting unannounced shakedowns of inmates and their living spaces; gathering intelligence to identify and search inmates suspected of having tobacco; and arresting visitors and CSP employees caught bringing tobacco into the prison. Id. ¶¶ 8-12. Employees caught bringing in contraband were fired and their photos posted on a "wall of shame" to discourage similar conduct by others. Id. ¶ 12. Woodson, Thomas, and Spikes have submitted affidavits reporting similar experiences regarding the presence of tobacco in prisons and CSP's efforts to combat it. Woodson Decl. ¶¶ 4-9, ECF No. 26-8; Thomas Decl. ¶¶ 4-7, ECF No. 26-10; Spikes Decl. ¶¶ 6-13, ECF No. 26-9.
II. Legal Standards
A. Summary Judgment Standard
Summary judgment may be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted). If the movant meets this burden, the burden shifts to the party opposing summary judgment to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact, or that the movant is not entitled to judgment as a matter of law. Id. at 324-26. This evidence must consist of more than conclusory allegations. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
2. Standard for Future-Health ETS Exposure Claim
"[A] prisoner can state a cause of action under the Eighth Amendment for exposure to ETS by 'alleging that prison officials have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health.'" Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005) (per curiam) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). In order to "prove such a claim, the prisoner must establish certain objective and subjective elements." Brown v. Smith, 187 F. App'x 947, 949 (11th Cir. 2006) (per curiam). Objectively, a "prisoner must show that he himself is being exposed to unreasonably high levels of ETS." Kelley, 400 F.3d at 1284. Subjectively, a "prisoner must show that prison authorities demonstrated a 'deliberate indifference' to his plight." Id. (quoting Helling, 509 U.S. at 36).
In addition to a future-health claim, an inmate may also bring a present-health claim for exposure to ETS. See Cassady v. Wilkes, 519 F. App'x 677, 679-80 (11th Cir. 2013) (per curiam) (discussing the two distinct claims). "In a present-injury claim, the plaintiff must establish that he suffers a serious medical need for a smoke-free environment and that prison officials displayed deliberate indifference to that need, resulting in an actual injury to the plaintiff's health." McKee v. Dir., Fla. Civ. Commitment Ctr., No. 2:11-cv-579-Ftm-38DNF, 2014 WL 2801043, at *4 (M.D. Fla. June 19, 2014). The Court has interpreted Gibson's complaint as a future-health claim and allowed it to proceed on that basis. Order 3-5, Oct. 16, 2019, ECF No. 6. However, even if the Court construed his complaint as also stating a present-injury claim, he still must show deliberate indifference, which, as discussed herein, he has failed to do. Moreover, the only evidence he has presented of injury to his present health are subjective complaints of breathing difficulties, dizziness, headaches, nausea, and burning eyes. Pl.'s Dep. 52:20-23; Pl.'s Dep. Exs. 5, 7; Pl.'s Resp. to Mot. for Summ. J. Ex. 4, ECF No. 28-5. This is insufficient to prove a "serious medical need." See, e.g., Morefield v. Brewton, 442 F. App'x 425, 427 (11th Cir. 2011) (per curiam) (holding that inmate's "conclusory allegations" that "his ETS exposure caused coughing, sleep deprivation, watery eyes, and breathing problems" was insufficient to defeat summary judgment); Ferguson v. Thomas, No. 5:14-cv-02396-RDP-JHE, 2016 WL 3774126, at *9 (N.D. Ala. June 20, 2016), recommendation adopted by 2016 WL 3753230 (N.D. Ala. July 14, 2016) (finding that "sinus issues, shortness of breath, coughing, sneezing, wheezing, dizziness, irritated eyes and sore throat" are not they "types of injuries" constituting a serious medical need (citing Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999); Oliver v. Dean, 77 F.3d 156, 158-159 (7th Cir. 1996))). Plaintiff also alleged in his deposition that a medical record indicated he "possibly" had cancer, though he has not submitted that record into evidence, shown what kind of cancer it was, or proved it was related to ETS. Pl.'s Dep. 55:4-21. Similarly, while his medical records show a history of glaucoma and blood in his stool, he has presented no evidence connecting this to his exposure to secondhand smoke. Pl.'s Resp. to Mot. for Summ. J. Ex. 4, at 1.
"To establish deliberate indifference, "the prisoner must prove three facts: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by conduct that is more than mere negligence." Giddens v. Calhoun State Prison, 277 F. App'x 847, 848 (11th Cir. 2007) (per curiam) (internal quotation marks omitted) (citing Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004)). "The adoption of a smoking policy will bear heavily on the inquiry into deliberate indifference." Kelley, 400 F.3d at 1284 (internal quotation marks omitted).
III. Analysis
Defendants' motion for summary judgment only challenges the subjective component of Plaintiff's claim. They argue Gibson has failed to demonstrate that they acted with deliberate indifference. Defs.' Br. in Supp. of Mot. for Summ. J. 10-12. The Court agrees.
A. Defendant Taylor
Gibson alleges Taylor improperly denied his November 1, 2018, WSP grievance without first talking to him about the source of the tobacco smoke and doing something about it. Pl.'s Dep. 56:2-21. Taylor avers, however, that it was his understanding that— as the health services administrator—he was asked only to investigate the medical aspect of Gibson's grievance. Taylor Decl. ¶ 8. He did not speak with Gibson because the grievance provided the information he needed. Id. ¶ 5. Based on the information provided, Taylor determined medical services to address the smoke exposure were available to Gibson and that he could obtain them through the sick-call process. Id. ¶ 9. Taylor states that since he was not involved in security, he did not know the source of tobacco smoke or have the means to prevent it. Id. ¶ 7.
Gibson fails to show that Taylor was deliberately indifferent to his exposure to ETS. There were two aspects to Gibson's grievance. The first was a complaint about not being in a "smoke free environment." Pl.'s Dep. Ex. 7. The second concerned his difficulty getting medical treatment when needed for "difficulty breathing[,] dizziness, and headaches" due to ETS. Id. The evidence shows that Taylor addressed the aspect of Gibson's grievance that was within his area of responsibility, specifically the availability of medical treatment. While Gibson asserts that Taylor "assumed the role of security personnel by [taking] over the investigation" of the grievance, he presents no evidence to support this conclusory allegation. Pl.'s Resp. to Mot. for Summ. J. 2, ECF No. 28. Moreover, the face of the grievance itself, including the copy submitted by Gibson, shows that it was not denied by Taylor but by another prison official. Pl.'s Resp. to Mot. for Summ J. Ex. 8, at 6, ECF No. 28-9; Defs.' Mot. for Summ. J. Attach. 13. Finally, Gibson was transferred from WSP within a few weeks of filing his grievance, and the grievance was not denied until after he left. Pl.'s Dep. 16:23-24; Pl.'s Dep. Exs. 1, 7; Defs.' Mot. for Summ. J. Attach. 13; Pl.'s Resp. to Mot. for Summ J. Ex. 8, at 6. Thus, Plaintiff cannot show that any action or inaction by Taylor caused him harm. See Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982) ("[Section 1983] plainly requires proof of an affirmative causal connection between the actions taken by a particular person 'under color of state law' and the constitutional deprivation.").
B. Defendants Zander, Woodson, and Spikes
Gibson complains that Zanders, Woodson, and Spikes failed to move him to a cell house upon his request. Pl.'s Dep. 29:2-25, 49:25-51:17. In his experience, counselors had the ability to move prisoners without approval. Id. at 30:24-31:1, 34:9-10. Zanders denies this, stating that she had no authority to direct the movement of an inmate. Zanders Decl. ¶ 4, ECF No. 26-7. Similarly, Woodson avers that while he could make a recommendation, movement required approval of the warden and unit manager of the receiving dorm. Woodson Decl. ¶ 12. Spikes states he is not involved in decisions to move inmates for purely health-related reasons, but, instead, is involved only in movements related to security issues. Spikes Decl. ¶ 4. Zanders, Woodson, and Spikes each aver that in their experience, cell houses are not noticeably less smoky than open dorms. Zanders Decl. ¶ 7; Woodson Decl. ¶ 11; Spikes Decl. ¶ 14. Zanders adds that if a cellmate smoked, she would expect a cell house unit to be worse. Zanders Decl. ¶ 8.
The evidence presented by Gibson is insufficient to show Zanders, Woodson, and Spikes acted with deliberate indifference. Other than his self-serving declarations, Gibson has not shown that these three defendants had the authority to unilaterally move him. Moreover, even assuming they did have such authority, he cannot show their failure to do so constituted a disregard for his risk of exposure to ETS. While Gibson testified that two- man cells were less smoky than open dorms, he also admits "the effects of [secondhand] smoke could be the same." Pl.'s Dep. 19:2; Pl.'s Resp. to Mot. for Summ. J. 3. In fact, his complaints at WSP arose while he was in a cell house unit, and he described the smoke conditions there as "bad." Pl.'s Dep. 22:10-23, 25:21-24. Additionally, cases where courts have found the evidence of ETS exposure sufficient to establish deliberate indifference have often involved plaintiffs in cell house units with heavy smokers. See, e.g., Helling, 509 U.S. at 28 (holding plaintiff housed with cellmate who smoked five packs a day stated a claim for exposure to ETS); Cassady v. Donald, 447 F. App'x 28, 30 (11th Cir. 2011) (per curiam) (affirming denial of summary judgment where roommate smoked four packs a day); Atkinson v. Taylor, 316 F.3d 257, 259 (3d Cir. 2003) (affirming denial of summary judgment for plaintiff confined in cell with two constant smokers).
C. Defendants Thomas and Bowen
Gibson's complaint against Thomas and Bowen arises from their failure to move him to a cell house or a smoke-free prison, but instead transferring him to Dooly State Prison. Pl.'s Dep. 18:16-18, 21:25-22:9, 41:15-20, 47:8, 51:22-52:2. He also asserts he should not have been put on a waiting list for a cell house but instead placed in one immediately due to his age and health conditions. Pl.'s Resp. to Mot. for Summ. J. 3. Bowen agrees with the observations of other defendants that the smoke conditions in cell houses was not much different than open dorms, and could be worse if the cellmate was a smoker. Bowen Decl. ¶¶ 16-17. Nevertheless, he granted Gibson's grievance and ordered that he be moved to a general-population cell house when one became available. Id. ¶ 19. However, there are not many general population cell house units available. Id. ¶ 22. Further, while Bowen admits there are cell house units for those inmates with special needs and health issues, including older inmates and wheel-chair bound inmates who need to be close to the cafeteria, he states he was not aware of any reason that Gibson should have been moved to the front of the waiting list. Id. ¶¶ 21, 24. Thomas avers he was similarly not aware of why Gibson should have been given preference. Thomas Decl. ¶ 22.
Warden Bowen does not specify who qualifies as an "older" inmate. Gibson was fifty-six years old when he arrived at CSP, which he apparently believes should have placed him at the top of the list for a cell house unit. Pl.'s Resp. to Mot. for Summ. J. Ex. 4, at 1; Pl.'s Dep. Ex. 1. However, Gibson has not identified any age-related condition requiring his placement close to the cafeteria.
The evidence is insufficient to establish deliberate indifference on the part of Thomas and Bowen. Gibson admits he had requested to be moved to a cell house, and Bowen—after consulting with Thomas—ordered that he be placed in a cell house. Pl.'s Dep. 29:9-11; Bowen Decl. ¶ 19. While Gibson asserts he should have been immediately moved due to his age and health conditions, he has presented no evidence that Thomas and Bowen were aware of any reason Gibson should have been moved to the front of the line. Gibson has produced health service request forms where he reported breathing difficulties, dizziness, and headaches from tobacco smoke. Pl.'s Resp. to Mot. for Summ. J. Ex. 4, at 3-5. Gibson has also produced a medical encounter form from January 9, 2019, where he complained about tobacco smoke and shortness of breath. Id. at 1. However, these were all subjective reports, and there is no evidence Thomas and Bowen ever saw them. Moreover, while the examiner noted a history of glaucoma during Gibson's January 9, 2019, examination, the examiner did not list any objective findings that Gibson was suffering ill-effects from ETS. Id. Gibson has submitted a profile sheet showing he had a "medical restriction" requiring him to wear sunglasses and a "detail restriction" from "chemicals, fumes, or dust," but he has not produced evidence of a special housing profile requiring that he avoid tobacco smoke. Id. at 2. Further, neither the grievance he submitted at CSP nor the letter he wrote to Thomas mention a condition making him especially susceptible to ETS. Pl.'s Resp. to Mot. for Summ. J. Ex. 8, at 3; Pl.'s Resp. to Mot. for Summ. J. Ex. 5. Those documents contain only the sort of generic complaints any prisoner might have regarding tobacco smoke. Id. In summary, Gibson has presented no evidence that Thomas and Bowen knew he required special treatment to avoid exposure to tobacco smoke.
Regarding Gibson's assertion that Thomas and Bowen were responsible for his transfer to Dooly State Prison, he has presented no evidence to support this. Moreover, even assuming they played some role in the transfer, the result was his placement in a cell house, which was one of his demands at CSP. Pl.'s Dep. 21:17-18, 22:15-19. Gibson's real complaint, apparently, is that he was not transferred to a prison of his choosing, specifically one closer to home. However, he admitted that he was never incarcerated at one of his preferred prisons, and his assertion that these facilities were smoke-free is based solely on inadmissible hearsay. Pl.'s Dep. 34:23-38:1.
D. CSP's Efforts to Control ETS
Further weighing in Defendants' favor is CSP's efforts to combat tobacco smoke. As noted earlier, "[t]he adoption of a smoking policy will bear heavily on the inquiry into deliberate indifference." Kelley, 400 F.3d at 1284 (internal quotation marks omitted). Here, GDOC policy forbids the "possession and consumption of tobacco products" in its facilities. Defs.' Mot. for Summ. J. Attach 15, at 1. In addition, Defendants have presented evidence that CSP enforced the policy, including searching inmates when they arrived; disciplining inmates possessing or using tobacco; conducting unannounced shakedowns of inmates and their living spaces; gathering intelligence to identify and search inmates suspected of having tobacco; and arresting visitors and CSP employees caught bringing tobacco into the prison. Bowen Decl. ¶¶ 8-12. Employees caught bringing in contraband were fired and their photos posted on a "wall of shame" to discourage similar conduct by others. Id. ¶ 12.
In response to this evidence, Gibson offers his own self-serving and unsubstantiated assertions that CSP officials ignored the no-smoking policy. This, however, is insufficient to defeat summary judgment. See Morefield, 442 F. App'x at 427 ("[Plaintiff's] own personal observations that inmates smoked inside the building after inspections established, at most, negligence in enforcing the no-smoking policy, which falls short of an Eighth Amendment violation."); Kelley, 400 F.3d at 1285 (noting "personal observations of smoke in the prison" was insufficient to show deliberate indifference); Ferguson, 2016 WL 3774126, at *7 (finding that statements "concerning other inmates smoking at will . . . demonstrate[d] at most only imperfect enforcement as opposed to deliberate indifference by any named defendant" (internal quotation marks omitted)); McKee, 2014 WL 2801043, at *8 (finding plaintiff's "unsubstantiated allegations and suspicions" insufficient to rebut evidence of efforts to enforce non-smoking policy). Gibson also points to officers being arrested and fired for bringing in cigarettes and marijuana as evidence that the no-smoking policy is not enforced. Pl.'s Dep. 19:21-22, 53:22-54:3; Pl.'s Resp. to Mot. for Summ. J. 3; Pl.'s Resp. to Mot. for Summ. J. Ex. 6, ECF No. 28-7. However, this only confirms Defendants' contention that they are not deliberately indifferent to violations of prison policy.
CONCLUSION
For the foregoing reasons, it is recommended that Defendants' motion for summary judgment (ECF No. 26) be granted. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 16th day of July, 2020.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE