Opinion
C.A. No. 01-467 S
September 11, 2003
REPORT AND RECOMMENDATION
Anthony Meo and Ronald Bourdeau (collectively "plaintiffs"), inmates incarcerated at the Adult Correctional Institutions ("ACI"), Cranston, Rhode Island, filed a Complaint pursuant to 42 U.S.C. § 1983 alleging a deprivation of their Eighth and Fourteenth Amendment Rights. Plaintiffs name as a defendant Ashbel T. Wall, Director of the Rhode Island Department of Corrections.
This matter is before the Court on defendant Wall's motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiffs have objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that defendant Wall's motion for summary judgment be granted.
Background
The following are the undisputed facts, taken in a light most favorable to the plaintiffs, the non-moving party:
Anthony Meo and Ronald Bourdeau are lawfully incarcerated individuals confined at the ACI in the Maximum Security Unit ("MSU"). Defendant Ashbel T. Wall is the current Director of the Rhode Island Department of Corrections ("RIDOC").
In April, 1995, the then director of the RIDOC enacted a prison regulation which prohibited smoking at the ACI, except in specifically designated areas. Pursuant to this policy, inmates in MSU were permitted to smoke in their individual cells.The MSU contains only single-man cells. Plaintiffs were, and continue to be, confined in the MSU in individual cells.
In 1999, defendant Ashbel T. Wall became Director of the RIDOC. When he became Director, Wall had a concern for the health and welfare of the inmate population with regard to exposure to environmental tobacco smoke, or "ETS" (commonly referred to as second hand tobacco smoke). At that time, Wall directed his staff to investigate and to consider the possibility of creating a smoke-free environment at the ACI.
In May 2002, Wall implemented a policy at the ACI which prohibits smoking and all other tobacco products in all prison facilities as of February 3, 2003. See Defendant's Exhibit A, RIDOC Policy 8.08 A; See also Wall Affidavit at ¶ 6. During the nine month period from enactment of the policy to enforcement, the RIDOC offered education and smoking cessation programs for inmates and staff, and offered free nicotine patches to inmates and staff. Wall made the decision to implement a smoke-free prison "because tobacco smoking is the number one cause of preventable disease and death in the United States, because involuntary exposure to ETS is a serious, preventable public heath hazard, and because a total smoking ban is the only way to eliminate ETS exposure." See Wall affidavit ¶ 7. Health care costs associated with smoking and ETS exposure and physical plant deterioration caused by ETS also weighed in on Wall's decision to prohibit smoking. Id. at ¶ 8.
Although they were housed in individual cells in the MSU, plaintiffs filed suit claiming that they were exposed to unreasonable levels of ETS. Plaintiffs seek relief under the Eighth and Fourteenth Amendment. Wall has moved for summary judgment. The plaintiffs have filed a opposition thereto.
Discussion
A. Summary Judgment Standard
Summary judgment's role in civil litigation is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Summary judgment can only be granted when "the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Rule 56 has a distinctive set of steps. When requesting summaryjudgment, the moving party must "put the ball in play, averring `an absence of evidence to support a nonmoving party's case.'"Garside, 895 F.2d at 48 (quoting Celotex v. Catrett, 477 U.S. 317, 325(1986)). The nonmovant then must document some factual disagreement sufficient to deflect brevis disposition. Not every discrepancy in the proof is enough to forestall summaryjudgment; the disagreement must relate to some issue of material fact. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-248 (1986).
On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion.See id. at 256-257. This evidence "cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a fact finder must resolve at an ensuing trial." Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989). Evidence that is merely colorable or is not significantly probative cannot deter summary judgment. Anderson, 477 U.S. at 256-257.
Plaintiffs have brought suit under 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
In order to maintain a section 1983 action, the conduct complained of must be committed by a person acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also. Baker v. McCollan, 443 U.S. 137(1979) (constitutional deprivations); Maine v. Thiboutot, 448 U.S. 1 (1980) (statutory deprivations). Here, there is no dispute that the named defendant acted under the color of state law. However, the defendant asserts that the undisputed facts demonstrate that the Eighth and Fourteenth Amendment were not violated. I agree.
1. Eighth Amendment
Plaintiffs have brought suit claiming that their exposure to environmental tobacco smoke rises to a level of an Eighth Amendment violation. Although not addressed anywhere in their objection to the motion for summary judgment, plaintiffs' Eighth Amendment claims can be divided into two separate claims: (1) present injury claims, and (2) future injury claims. However, since the plaintiffs have failed to demonstrate that they possess any evidence whatsoever to maintain any claim under the Eighth Amendment, defendant Wall's motion should be granted in its entirety.
a. Present Injury Claims
The Eighth Amendment's prohibition against cruel and unusual punishment imposes upon jail officials the duty to "provide humane conditions of confinement" for prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). This duty includes the obligation to ensure that inmates receive adequate food, clothing, shelter, protection, and medical care.See id.
The Supreme Court has made clear that a viable Eighth Amendment claim must contain both an objective and subjective component. Id. at 834. To satisfy the objective component, "the deprivation alleged must be, objectively, `sufficiently serious.'" Id. (quotingWilson v. Seiter, 501 U.S. 294, 298 (1991)). As the Supreme Court explained in Fanner, to be sufficiently serious "a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834 (internal quotation marks and citations omitted). Therefore, "extreme deprivations are required to make out a conditions-of-confinement claim."Hudson v. McMillian, 503 U.S. 1, 9 (1992).
The subjective component requires the inmate demonstrate that the jail officials knew of a substantial risk of serious injury to the inmate but nevertheless failed to take reasonable measures to prevent that harm from occurring. "[A] prison official cannot be held liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
i. Objective Component
Here, plaintiffs have failed to demonstrate that they possess any evidence to satisfy the objective component of the deliberate indifference standard. Plaintiffs fail to demonstrate that the environmental tobacco smoke that they were exposed to caused them to suffer "serious" current health problems. Indeed, plaintiffs have failed to demonstrate that they suffer from any current maladies.
In their Complaint, plaintiffs averred that Meo has suffered from shortness of breath, wheezing, tearing of his eyes, and pains in his chest. While these ailments may have caused some distress and discomfort, they are not the sort of objectively serious injury or medical need that amounts to a denial of "the minimal civilized measure of life's necessities," Farmer, 511 U.S. at 834, necessary to maintain a claim under the Eighth Amendment. Moreover, Meo has failed to set forth evidence that he has in fact had these problems. In opposing a motion for summary judgment, plaintiffs may not rely upon the mere allegations in the Complaint. Rather, plaintiffs must identify facts in the record which support their claims.
Bourdeau, on the other hand, failed to allege in the Complaint, and fails to demonstrate in opposing the motion for summary judgment, that he suffers from any current health problems, let alone a serious health problem. Without demonstrating that he too suffers from a serious health problem, Bourdeau's Eighth Amendment claims should fail.
Helling v. McKinney, 509 U.S. 25 (1993), provides no help to the plaintiffs. In Helling, the U.S. Supreme Court held that exposure to environmental tobacco smoke could satisfy the objective prong of the deliberate indifference test when coupled with an objectively serious injury. Id. at 34-3 5. Plaintiffs must show that their present injury from ETS exposure is objectively serious. Here, plaintiffs are unable to establish any basis for a finding that they have a serious current medical condition or ailment resulting from their exposure to ETS.
Assuming arguendo, that plaintiffs had demonstrated they currently suffer from serious health problems, they must also demonstrate that the ETS caused those problems. Other than the plaintiffs' speculation, no evidence has been presented to affirmatively link ETS to any current health problem. Plaintiffs' failure to demonstrate that ETS was the proximate cause of any serious health problems likewise causes their Eighth Amendment present injury claims to fail.
Plaintiffs have failed to satisfy the objective component of the deliberate indifference standard for their Eighth Amendment present injury claims. Accordingly, defendant Wall's motion for summary judgment should be granted.
ii. Subjective Component
Assuming the plaintiffs had satisfied the objective component of the deliberate indifference standard, plaintiffs are also required to demonstrate that they have evidence to sustain the subjective component, that the defendant knew of a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it.Farmer, 511 U.S. at 847. Here, plaintiffs have not a scintilla of evidence which demonstrates Wall knew of any health or medical issue that the plaintiffs had or acquired from ETS. Indeed, plaintiffs have failed to demonstrate that they currently suffer from any injury related to ETS. Thus, Wall could not be aware of something which does not exist.
Moreover, the undisputed facts demonstrate that the defendant accommodated the plaintiffs as non-smokers. At the time the Complaint was filed, the smoking policy in place at the ACI segregated smokers from non-smokers with respect to their cell confinement and smoking was permitted only in specifically designated areas. Plaintiffs were housed in the MSU, confined in one-man cells. Any smoke that they were exposed to emanated from other cells. No evidence demonstrates that the defendant placed the plaintiffs next to, or in close proximity to, smokers confined in other cells in a deliberate, intentional manner. Moreover, the undisputed facts indicate that Wall took further precautions to limit inmate's exposure to ETS by adopting an across the board smoking ban at the prison. Such a ban weighs heavily against a finding that Wall was deliberately indifferent to plaintiffs' needs. To the contrary, the smoking ban demonstrates that Wall was more than accommodating to their needs.
Liability under the Eighth Amendment attaches when the infliction of harm is deliberate or otherwise reckless in the criminal law sense, which means that the defendant must have committed an act so dangerous that his risk of knowledge can be inferred or that the defendant actually knew of an impending harm that was easily preventable. See id. Plaintiffs have adduced no such evidence, and thus, their Eighth Amendment present injury claims cannot go forward. I recommend that defendant's motion for summary judgment be granted.
b. Future Injury Claims
In Helling v. McKinney, the Supreme Court recognized that the Eighth Amendment protects prisoners not only from a prison official's deliberate indifference to a prisoner's current serious health problems, but also from an official's deliberate indifference to conditions posing an unreasonable risk of serious damage to a prisoner's future health.Helling, 509 U.S. at 33-35. In order to maintain a claim for future harm caused by exposure to ETS, plaintiffs must satisfy the objective and subjective elements necessary to prove an Eighth Amendment violation, with a minor variation.
With respect to the objective component of a future injury claim, a plaintiff must show that "he himself is being exposed to unreasonably high levels of ETS." Id. at 35. This objective injury requires more that just a "scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS," it also requires that the plaintiffs show "that the risk of which he complains is not one that today's society chooses to tolerate." Id. at 36. With respect to the subjective element, plaintiffs must demonstrate that the defendant is ignoring the possible dangers posed by exposure to environmental tobacco smoke. Id.
i. Objective Component
Here, plaintiffs have failed to demonstrate that they are being exposed to unreasonably high levels of environmental tobacco smoke. Rather, the undisputed facts demonstrate that Wall implemented a complete ban of smoking at the ACI, making it impossible to demonstrate that they continue to be exposed to high levels of ETS.
Moreover, plaintiffs must demonstrate that their future health has been compromised by their exposure to ETS. Plaintiffs, however, have not identified any evidence demonstrating this is so. The mere possibility of increased risk of some ailment related to ETS exposure does not amount to a substantial risk of serious harm prohibited by the Eighth Amendment.
Furthermore, plaintiffs have failed to demonstrate "that the risk of which [they] complain is not one that today's society chooses to tolerate." Id. at 36. While ETS may have caused the plaintiffs to suffer some minor discomfort or annoyance, the plaintiffs have failed to demonstrate that it was contrary to current standards of decency for them to be exposed to ETS. Plaintiffs have thus failed to demonstrate the objective component of their Eighth Amendment future injury claim.
ii. Subjective Component
In addition to establishing the objective component, plaintiffs must set forth evidence demonstrating the subjective component. In other words, plaintiffs must demonstrate that defendant was deliberately indifferent to their needs. Much of the same discussion above is relevant here.
First, plaintiffs offered no evidence in their objection to the motion for summary judgment to demonstrate the subjective component. Plaintiffs may not rely on the allegations set forth in their Complaint in opposing a motion for summary judgment.
Second, defendant, at the time the Complaint was filed, had a smoking policy in place which accommodated non-smoking inmates. Plaintiffs were placed in individual cells, limiting their exposure to ETS. No evidence demonstrates that Wall intentionally placed the plaintiffs near the cells of smokers.
Third, defendant, since the filing of the Complaint, has adopted a new policy whereby smoking is prohibited in the entire prison complex. Thus, plaintiffs' gripe about any future exposure to ETS has been extinguished. "Adoption of a smoking policy bear[s] heavily on the inquiry of deliberate indifference." Helling, 509 U.S. at 36.
No evidence indicates the Wall has been indifferent to the plaintiffs' needs. The undisputed facts demonstrate that Wall has carefully considered the plaintiffs' needs and adopted a policy to prevent any possible harm from ETS. Accordingly, plaintiffs have no evidence to maintain the subjective component of their Eighth Amendment future injury claims. Defendant Wall's motion for summary judgment should be granted. I so recommend.
2. Fourteenth Amendment
In their Complaint, plaintiffs also allege a violation of their due process rights under the Fourteenth Amendment. Plaintiffs, however, have failed to demonstrate that they have a liberty or property interest that has been infringed upon by the defendant. Rather, plaintiffs' claims are properly characterized as arising under the Eighth Amendment.See Whitely v. Albers, 475 U.S. 312, 326-327 (1986) (A prisoner brought a claim under both the Eighth Amendment and Fourteenth Amendment after being shot during a riot. The Court reasoned that the Eighth Amendment served as the primary source of protection to the convicted prisoner). Plaintiffs' due process claim is effectively subsumed within the Eighth Amendment claim. Clemmons v. Bohannon, 918 F.2d 858, 869 (10th Cir. 1990) vacated on other grounds, 956 F.2d 1523 (10th Cir. I992)( en bane). Accordingly, the defendant's motion for summary judgment should be granted on plaintiffs' Fourteenth Amendment Due Process Clause claim. I so recommend.
Conclusion
Accordingly, for the reasons stated above, I recommend that defendant Wall's motion for summary judgment be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).