Summary
asserting his 8th and 14th Amend. rights have been violated because of a ban on tobacco products in prison—dismissed
Summary of this case from Larson v. BarberOpinion
No. 2:06-cv-1413 ALA P.
January 24, 2008
ORDER
Plaintiff Harvey Eugene Larson is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Mr. Larson brings suit against Governor Schwarzenegger and Warden Runnels on the grounds that his Eighth and Fourteenth Amendment rights have been violated because of a ban on the use of tobacco products in prison.
Mr. Larson named Tim Leslie in his complaint, but Mr. Leslie was never served. Process directed to Mr. Leslie was returned unserved because he was "not in CDC locator data base, [and] unable to locate." (Doc. 28). The Court directed Mr. Larson to provide more information concerning the whereabouts of Mr. Leslie so that service could be re-ordered. (Doc. 28 and Doc. 36). Mr. Larson, however, failed to provide any additional information.
Before this Court are the following motions: (1) plaintiff's two motions for summary judgment (Doc. 38 and Doc. 81); (2) defendants' motion for summary judgment (Doc. 76); (3) plaintiff's two motions for a temporary restraining order (Doc. 39 and Doc. 46); (4) plaintiff's "notice of claim of unconstitutionality of state law rule 23-132" (Doc. 45); (5) plaintiff's motion for default judgment (Doc. 59); (6) plaintiff's two motions for a bench trial (Doc. 60 and Doc. 69); (7) plaintiff's two motions in limine (Doc. 63 and Doc. 70); and (8) plaintiff's motion for discovery (Doc. 72). For the reasons stated below, plaintiff's motions for summary judgment are denied, defendants' motion for summary judgment is granted, and the case is dismissed. All other pending motions filed by plaintiff are denied.
I
There is no dispute that, on or about July 1, 2005, regulations went into effect which banned the possession of all tobacco products by inmates housed in California Department of Corrections and Rehabilitation facilities. Cal. Code Regs. tit. 15, § 318. (Doc. 79 at 1). Mr. Larson claims that, because tobacco has therapeutic and medicinal properties, its ban results in cruel and unusual punishment and a violation of his due process and equal protection rights. (Compl. at 10). He argues that "snuff," a tobacco product traditionally inhaled, does not emit tobacco smoke, which was the impetus for the ban on tobacco products in prison. (Doc. 38). Mr. Larson also claims that Governor Schwarzenegger and Warden Runnels "overextend[ed]" their role in implementing the tobacco ban in prisons. (Compl. at 10). Mr. Larson seeks monetary damages and injunctive relief. (Compl. at 11).
Mr. Larson has previously filed three similar actions. On May 1, 2006, in Larson v. Schwarzenegger, 2:06-cv-00940-GEB-GGH, Mr. Larson filed a complaint alleging that the smoking ban in prison violated his Eighth and Fourteenth Amendment rights. In this case, the Court screened and dismissed Mr. Larson's complaint under 28 U.S.C. § 1915A(a) explaining that "the actions of prison officials in banning tobacco cannot possibly be an Eighth Amendment or Fourteenth Amendment violation." (Doc. 65, Ex. A at 2). In dismissing the case, the Court noted that Mr. Larson attempted to file similar law suits on two other occasions: "The first case, Larson v. Schwarzenegger, CIV S 05-0007 GEB PAN P was dismissed for plaintiff's failure to file an amended complaint, having failed initially to set forth colorable claims. The second case, Larson v. Schwarzenegger, CIV S 05-0364 MCE PAN P, was dismissed as duplicative." Id. The instance case differs from these other cases only in that Mr. Larson, in addition to challenging the smoking ban, focuses specifically on the ban of other "tobacco substitutes," such as snuff. (Doc. 38).
Defendants ask that we take judicial notice of Larson v. Schwarzenegger, 2:06-cv-00940-GEB-GGH. (Doc. 65 n. 2). Defendants request is granted. "[W]e `may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.'" Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir. 2002) (citation omitted); see also Fed.R.Evid. 210(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.").
II
Summary judgment is proper where there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In opposing summary judgment, a nonmoving party must "go beyond the pleadings and, by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citing Fed.R.Civ.P. 56(e)). "On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). "The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). "Once the moving party meets its initial burden, however, the burden shifts to the non-moving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks omitted).
Where the party resisting a motion for summary judgment is pro se, the court "must consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [he] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (holding that allegations contained in a pro se plaintiff's verified pleadings must be considered as evidence for purposes of summary judgment). Mr. Larson's first amended complaint is verified (Doc. 10), and, therefore, will be considered as evidence for the purposes of summary judgment.
III
To the extent that Mr. Larson is claiming that the tobacco ban is a violation of his Eighth Amendment rights, the claim fails. Mr. Larson claims that tobacco products have a therapeutic and medicinal effect. He argues that to be forced to stop smoking "cold turkey" without the use of other tobacco products, such as snuff, amounts to deliberate indifference of his serious medical needs. (Doc. 79 at 7).
In his amended complaint, Mr. Larson does not specifically allege that his Eighth Amendment rights have been violated. (Doc. 10). However, Mr. Larson alludes to the Eighth Amendment in his motion for summary judgment and in his opposition to defendants' motion for summary judgment. (Doc. 38 and Doc. 79).
"The government has an obligation under the Eighth Amendment to provide medical care for those whom it punishes by incarceration." Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). However, "not every breach of that duty is of constitutional proportions." Id. "[T]he Eighth Amendment is violated when prison officials demonstrate deliberate indifference to serious medical needs." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal quotation marks omitted). Prison officials' "conduct must constitute unnecessary and wanton infliction of pain before it violates the Eighth Amendment." Id.
Mr. Larson has failed to establish that withdrawal from tobacco constitutes a serious medical need, or that a ban on tobacco demonstrates deliberate indifference to serious medical needs. Moreover, there are no court decisions holding that the denial of tobacco products, including snuff, deprives prisoners of their right to be free from cruel and unusual punishment or that the use of snuff is a medical necessity. Tobacco products, like snuff, do not constitute a basic human need such that their deprivation would trigger an Eighth Amendment injury. See, e.g., Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981) (explaining that prisoners must be provided with "basic human needs" such as food, clothing, shelter, sanitation, medical care, and personal safety).
In responding to defendants' motion for summary judgment, the Court directed Mr. Larson to cite cases supporting his constitutional claims. (Doc. 77). It appears that Mr. Larson was unable to find cases because he was recently transferred to a new prison and could not access the law library in time to respond to the Court's order. (Doc. 79 at 9-11). Based on the Court's independent research, no cases could be found to support Mr. Larson's claims that he has a constitutional right to the use of tobacco products, including snuff, in prison.
Mr. Larson "doubts" the state legislature's conclusion that tobacco products relate to the illness of inmates or an increased cost to taxpayers. (Doc. 79 at 2). He maintains that it is a "HOAX" that the ban on tobacco is beneficial to inmates because it lowers exposure of tobacco smoke. (Doc. 79 at 3). The U.S. Supreme Court has found the opposite, that exposure to environmental tobacco smoke in prison may constitute cruel and unusual punishment because it creates an unhealthy environment. Helling v. McKinney, 509 U.S. 25, 35 (1993).
To the extent that Mr. Larson is arguing that snuff is free from the second-hand smoke that the U.S. Supreme Court was concerned with in Helling, his argument still fails because there is no case which holds that prisoners have a constitutional right to snuff.
Mr. Larson does not present any evidence to support his claims. Thus, he has failed to show a genuine issue of material fact and his claims fail as a matter of law. See Gen. Bus. Sys. v. N. Am. Philips Corp., 699 F.2d 965, 971 (9th Cir. 1983) (explaining that to avoid summary judgment, a party is required to present "`some `significant probative evidence tending to support the complaint'") ( citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).
IV
Mr. Larson argues that the ban on tobacco products has violated his due process rights under the Fourteenth Amendment and his equal protection rights under the Fifth and Fourteenth Amendments. A violation of a prisoner's due process rights requires that the defendants have acted under the color of state law and have deprived the prisoner of a fundamental liberty interest. Hernandez v. Johnson, 833 F.2d 1316, 1317 (9th Cir. 1987). There are no cases which hold that the use of tobacco products, such as snuff, is a fundamental liberty interest.
Prison regulations impacting non-fundamental constitutional rights of inmates are legitimate if they are rationally related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987). Without citing to any evidence, Mr. Larson argues that the "banning of snuff does not serve a legitimate penological interest to provide a healthy environment for prison inmates" because a "ban on tobacco products such as snuff breeds hate between inmates." (Doc. 79 at 10). The defendants argue that the tobacco ban serves the penological interests of "1) saving taxpayer money; 2) making the state's population healthier; and 3) enabling the rehabilitation of prisoners." (Doc. 76 at 6).
The legislative intent underlying the tobacco ban in prison supports defendants' argument. The drafters of the tobacco ban in prison intended the regulation to be a "great way to save the state money [in lowing health care costs of inmates] and it will make the population healthier . . . if they can survive quitting this habit, then maybe they can reform their lives in other ways too." (Doc. 76, Ex. C, Concurrence in Sen. Amends. to Assem. bill no. 384 (August 23, 2004) at 3). Because the ban on tobacco products, including snuff, in prison serves legitimate penological interests, Mr. Larson's Fourteenth Amendment claim fails as a matter of law.
For similar reasons, Mr. Larson's claim that the tobacco ban violates his equal protection rights also fails. "[U]nless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). There are no cases which hold that the right to use tobacco is a fundamental liberty interest or that a prisoner who uses tobacco products is a member of a protected class. Because the ban on tobacco serves legitimate penolgical interests, Mr. Larson's equal protection claim fails.
Mr. Larson contends that the ban on tobacco products violates "existing law." (Doc. 81 at 2). He mistakenly cites to the legislative history of the regulation which states that "existing law" provides that a prison canteen may sell "various items to inmates, including tobacco." (Doc. 76, Ex. C at 1). Mr. Larson overlooks the fact that the bill, "as passed by the assembly," changed the existing law and "[r]emoved tobacco from the list of items CDC is authorized to sell to inmate commissionaires and canteens." (Doc. 76, Ex. C at 2).
V
Mr. Larson claims that Governor Schwarzenegger and Warden Runnels violated his constitutional rights by "over-extend[ing]" the tobacco ban to prisons. (Compl. at 10). He argues that Governor Schwarzenegger cannot be dismissed as a defendant because he signed the bill into law. (Doc. 79 at 6). Defendants claim that they are entitled to qualified immunity.
The Supreme Court has instructed that state officials and municipalities are only liable under § 1983 if there is, at minimum, an underlying constitutional tort. Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658, 691 (1978). Here, Mr. Larson is unable to show that a ban on the use of tobacco products violates his constitutional rights. Moreover, the defendants are entitled to the defense of qualified immunity because a reasonable person in defendants' positions would not have known that a ban on tobacco products in prison violated clearly established federal statutory or constitutional rights. See, e.g., Case v. Kitsap County Sheriff's Dep't, 249 F.3d 921, 926 (9th Cir. 2001) (holding that officers were entitled to the defense of qualified immunity against a § 1983 claim because a reasonable officer could have believed that arrest was constitutionally permissible). Therefore, defendants' motion for summary judgment is granted, and Mr. Larson's motion for summary judgment is denied.
VI
Because summary judgment is entered in favor of defendants, all pending motions filed by Mr. Larson are denied as moot.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motions for summary judgment (Doc. 38 and Doc. 81) are denied.
2. Defendants' motion for summary judgment (Doc 76) is granted.
3. Plaintiff's motions for temporary restarting order (Doc. 39 and Doc. 46) are denied.
4. Plaintiff's motion concerning the "notice of claim of unconstitutionality of state law rule 23-132" (Doc. 45) is denied.
5. Plaintiff's motion for default judgment (Doc. 59) is denied.
6. Plaintiff's motions for a bench trial (Doc. 60 and Doc. 69) are denied.
7. Plaintiff's motions in limine (Doc. 63 and Doc. 70) are denied.
8. Plaintiff's motion for discovery (Doc. 72) is denied.
9. The case is dismissed.