Currently applicable constitutional standards are used in making the determination as to whether the defendant's conduct violated a constitutionally-protected right. If the plaintiff passes this threshold, the Court must determine whether the defendant's conduct was objectively reasonable under legal principles as they existed at the time of the defendant's acts or omissions.See Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); and Rochon v. City of Angola, La., 122 F.3d 319, 320 (5th Cir. 1997).Rochon v. City of Angola, La., 122 F.3d at 320; Foster v. City of Lake Jackson, 28 F.3d at 428; and Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).
This evidence creates genuine issues of material fact regarding whether Murrell objectively proved that he was exposed to unreasonably high levels of ETS and whether the defendants were subjectively deliberately indifferent to his plight. See Helling, 509 U.S. at 35-36, 113 S.Ct. 2475; Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), abrogated on other grounds, Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (Prisoner Litigation Reform Act requires exhaustion of administrative remedies regardless of what relief is available through administrative procedures), and Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Therefore, the district court erred when it granted summary judgment for the defendants on Murrell's ETS claim.
Murrell has established that a genuine issue of material fact exists concerning whether the defendants were subjectively deliberately indifferent to his plight. Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), abrogated on other grounds, Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Murrell's summary judgment evidence shows that the defendants knew that Murrell was allergic to environmental tobacco smoke (ETS) and that ETS caused him to have migraines and high blood pressure.
Id. Since 1993, almost every Court of Appeals that has addressed this issue has recognized that a prisoner's right to be free from levels of ETS that pose an unreasonable risk of future harm was clearly established by Helling.See Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir. 2001) (affirming District Court's denial of Rule 12(b)(6) motion to dismiss based on qualified immunity where a prisoner asserted that ETS exacerbated severe chronic asthma); Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999) (denying prison officials' motion for summary judgment based on qualified immunity in an ETS case); Whitley v. Hunt, 158 F.3d 882, 887-88 (5th Cir. 1998) (concluding ETS claim was wrongly dismissed as frivolous where prison doctor issued report noting that prisoner required nonsmoking quarters), overruled on other grounds by Booth v. Churner, 532 U.S. 731, 735, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Rochon v. City of Angola, Louisiana, 122 F.3d 319, 320 (5th Cir. 1997) (affirming District Court's denial of a Rule 12(b)(6) motion to dismiss based on qualified immunity where prisoner asserted that he was forced to live and work in an environment filled with tobacco smoke, even though the smoke had not yet harmed his health but allegedly posed a threat to his health in the future); Jacobs v. Young, No. 94-3241, 1995 WL 150402, at *2 (6th Cir. April 5, 1995) (unpublished opinion) (concluding prisoner's right to be free from harmful levels of ETS was clearly established in 1993); see also Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir. 1995) (affirming District Court's denial of a Rule 12(b)(6) motion to dismiss based on qualified immunity where a prisoner alleged severe headaches, dizziness, nausea, vomiting, and breathing difficulties from rooming with "heavy smoker"); but see Mills v. Clark, No. 99-6334, 2000 WL 1250781, at *4 (4th Cir. Sept.5, 2000) (unpublished opinion) (reversing District Court's denial of qualified immunity on summary judgment for
The Fifth Circuit has recognized potential ETS claims where exposure to tobacco smoke was severe and sustained, such as when the plaintiff was forced to live and work in environments filled with tobacco smoke or when the plaintiff claimed that his smoking environment was associated with his bronchitis and facial rash and the prison doctor reported that the plaintiff needed non-smoking quarters. Whitley v. Hunt, 158 F.3d 882, 887-88 (5th Cir. 1998); Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). However, the Fifth Circuit rejected an ETS claim where the plaintiff was exposed to tobacco smoke on bus rides to and from work.
Moreover, using currently applicable constitutional standards, plaintiff must show that these constitutional rights were clearly established at the time of the defendant's actions. Id. 600 U.S. at 233-34, 111 S.Ct. 1789; Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Second, he must show that the defendant's actions were objectively unreasonable at the time of the conduct in question.
Taking Black's allegations as true, he has stated a plausible claim that Goodwin and Leblanc knew he faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it. See Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Black should therefore be provided an opportunity "to develop his case at least to the point where any merit it contains is brought to light."
See Easter v. Powell, 467 F.3d 459, 461-63 (5th Cir. 2006); Erickson, 551 U.S. at 94. Bruce further alleged that he suffered trouble breathing as a result of exposure to ETS. Prison officials may violate the Eighth Amendment by, with deliberate indifference, exposing inmates to excessive levels of ETS. Helling v. McKinney, 509 U.S. 25, 35-39 (1993); Rochon v. City of Angola, La. 122 F.3d 319, 320 (5th Cir. 1997) (per curiam). Bruce alleged that five to six prisoners would smoke at a time, exposing everyone to the smoke; that guards were unable to see due to a metal wall blocking their view of the cells; that the jail's no-smoking policy was not enforced; that when inmates ran out of cigarettes, they purchased smokeless tobacco, dried it, and then rolled it into cigarettes; and that he complained about the smoking to no avail. He also alleged that the exposure contributed to his worsening health problems, including his difficulty breathing, his chest pains, his nausea, his fainting, and his coronary artery disease.
Ware's verified complaint provides sufficient summary judgment evidence to create a genuine issue of material fact concerning whether he was exposed to unreasonable levels of environmental tobacco smoke and, therefore, to withstand the defendants' motion for summary judgment. See Helling v. McKinney, 509 U.S. 25, 28 (1993); see also Whitley v. Hunt, 158 F.3d 882, 888 (5th Cir. 1998), overruled on other grounds, Booth v. Churner, 532 U.S. 731 (2001); Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Ware's verified complaint and grievance create a genuine issue of material fact concerning whether the defendants actually enforced the no-smoking policy on a regular basis and, if not, whether the defendants' failure to enforce the policy constituted deliberate indifference to Ware's exposure to environmental tobacco smoke.
This presents a genuine issue of material fact. See Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). As to deliberate indifference, Robinson has met the burden of production only as to Benjamin.