Opinion
1:19-cv-90
05-13-2021
TERRENCE SELDON, Plaintiff v. JOHN E. WETZEL, et al, Defendants
SUSAN PARADISE BAXTER UNITED STATED DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 148, 156]
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the motions for summary judgment filed by Defendants Daniel Lee, Sean Mahaney, Scott Mealy, and Gregory Miller (hereinafter, the "Corrections Defendants") [ECF No. 148] and Defendants Robert Maxa and William Sutherland (hereinafter, the "Medical Defendants") [ECF No. 156] each be granted.
II. Report
A. Procedural Background
Plaintiff Terrence Seldon, acting pro se, initiated this civil rights action pursuant to 42 U.S.C. § 1983 by filing a motion for leave to proceed in forma pauperis on March 29, 2019. ECF No. 1. The Court granted Seldon's motion and docketed his complaint on April 2, 2019. In his complaint, Seldon, a prisoner currently incarcerated at the State Correctional Institution at
Greene (SCI-Greene), contends that prison officials at his previous place of confinement, SCI-Forest, violated his civil rights as secured by the Eighth Amendment to the United States Constitution by: (1) exposing him to environmental tobacco smoke ("ETS") with deliberate indifference to his health; and (2) failing to provide him with adequate medical treatment for his asthma. Seldon initially named a host of prison officials as Defendants in this action, including: John Wetzel, the Secretary of Corrections for the Pennsylvania Department of Corrections (DOC); Michael D. Overmyer, Superintendent of SCI-Forest; Derek Oberlander, Deputy Superintendent at SCI-Forest; Joseph J. Silva, Director of the Bureau of Health Care Services; Dr. Robert Maxa, Medical Director at SCI-Forest; Corrections Health Care Administrator Kim Smith; Health Services Administrator Lisa Lemoreaux; Dr. Sutherland; Nurse Jamie Ferdarko; Unit Managers Miller and Lee; and Correctional Officers Milly and Mahany. ECF No. 3 fflf 4-16. Seldon sought monetary and injunctive relief pursuant to 42 U.S.C. § 1983.
On February 6, 2020, the undersigned issued a Report and Recommendation ("R&R") in which it was respectfully recommended that Defendants' partial motions to dismiss [ECF Nos. 29 and 43] each be granted. ECF No. 62. On February 26, 2020, United States District Judge Susan Paradise Baxter issued an Order adopting the R&R and dismissing Defendants Wetzel, Overmyer, Oberlander, Silva, Smith, Ferdarko, and Lamoreaux from this action. ECF No. 73. The following claims were permitted to proceed to discovery: 1) Seldon's failure to protect claim against Defendants Miller, Milly, Mahany and Lee; and 2) Seldon's deliberate indifference claim against Defendants Maxa and Sutherland. Id.
Presently pending before the Court are Motions for Summary Judgment filed by the Corrections Defendants [ECF No. 148] and the Medical Defendants [ECF No. 156]. Each motion is accompanied by a Brief in Support [ECF Nos. 149, 157], a Concise Statement of Material Facts [ECF Nos. 150, 158], and an Appendix [ECF No. 151, 159]. In response, Seldon has filed a combined Response to Defendants' Motions [ECF No. 167], a Brief in Opposition [ECF No. 168], a Statement of Disputed Factual Issues [ECF No. 170], and a supplemental response in opposition [ECF No. 172]. The Medical Defendants have filed a Reply [ECF No. 176]. This matter is ripe for disposition.
The Court has jurisdiction over Plaintiffs claims pursuant to 28 U.S.C. § 1331. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
B. Factual Background
1. Local Rule 56.1 Violation
Before addressing the factual background underlying this action, the Court notes that Plaintiff has failed to properly respond to either Defendants' Concise Statement of Material Facts [ECF Nos. 150, 158], as required by Local Rule 56.C.1. This rule requires non-moving parties to a motion for summary judgment to file a responsive concise statement in which they must: respond to each numbered paragraph in the movant's concise statement; admit or deny the facts contained in the movant's concise statement; set forth the basis for denial if any fact within the movant's concise statement is not entirely admitted by the non-moving party, with appropriate citation to the record; and set forth, in separately numbered paragraphs, any other material facts at issue. See LCvR 56.C.1. Courts located in the Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018), adopted by 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny County Airport Authority, 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
A non-moving party "faces severe consequences for not properly responding to a moving party's concise statement." Hughes, 2017 WL 2880875, at *1. Any alleged material facts "set forth in the moving party's Concise Statement of Material Facts . . . which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." LCvR 56.E. While courts provide some leniency to pro se litigants when applying procedural rules, the Court '"is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'" Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Filler v. Ford, 542 U.S. 225, 231 (2004)). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that "we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").
Accordingly, to the extent that Plaintiff has failed to respond to any concise statement of material fact, that concise statement of material fact will be deemed admitted. LCvR 56.E. However, the Court will consider any facts properly alleged in Plaintiffs pro se responses that specifically contradict Defendants' statement of facts, to the extent that they are supported by the record. Boyd v. Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that "[t]o the extent Plaintiffs statement of 'fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted").
2. Facts
Except where noted, the following facts are undisputed. Seldon arrived at SCI-Forest on February 2, 2017, following a transfer from SCI-Pittsburgh. ECF No. 158 11. The prison initially assigned Seldon to Cell GB 1008 in the G-Unit, and later moved him to Cell GB 2059 in the same unit. ECF No. 150 126. Throughout most of his time on G-Unit, Defendant Miller was Seldon's Unit Manager. ECF No. 151-2 ¶¶-4.
Although Seldon contends that he arrived at SCI-Forest with a "z-code," entitling him to single-cell status, the record is unclear as to the veracity of this averment. See ECF No. 3 ¶ 19; ECF No. 150 ¶ 27. In any event, the prison determined shortly thereafter that a z-code was not supported by Seldon's psychological profile or misconduct history. ECF No. 150 ¶ 28. As a result, the prison informed Seldon that he would have to have a cellmate. Id. ¶ 32.
Shortly after arriving at SCI-Forest, Seldon began complaining to staff that he suffered from asthma and that the level of ETS in the facility was affecting his breathing. ECF No. 3 ¶ 22. Between February 27, 2017, and December 12, 2018, Seldon claims to have submitted approximately ten sick call forms and inmate request forms addressing his concerns about ETS. Id. || 23-27. See also ECF No. 3-1 at 4-9, 36-39. Seldon avers that prison officials ignored each of these requests, depriving him of medical treatment and forcing him to endure unnecessary exposure to ETS.
Defendants suggest that these sick call request forms "are of dubious provenance, as there are no markings on them to confirm that they were actually given to anyone to be processed." ECF No. 157 at 13-14; ECF No. 158-3 Iffl 4-5. Defendants explain that, although such documents are typically stamped upon intake, Seldon's exhibits lack any official stamp or markings to indicate that they were ever submitted to prison officials. Seldon, in response, maintains that he submitted the originals but retained unmarked carbon copies. Because the Court ultimately concludes that Seldon received adequate medical care under either circumstance, this factual dispute is not material.
Contrary to Seldon's averment, the record reflects that he received medical care for his asthma symptoms on numerous occasions. Immediately upon his arrival at SCI-Forest, a nurse reviewed Seldon's medical conditions and noted that he suffered from asthma. ECF No. 158 ¶ 2. On February 20, 2017, Sutherland examined Seldon at the chronic care clinic and noted that his asthma had been "mild" and "intermittent" over the past year. Id. ¶ 3. Seldon reported that he experienced symptoms twice a week and used his inhaler once a day. Id. Sutherland characterized his asthma as "improving." Id.
On February 24, 2018, Seldon presented at the chronic care clinic for general medical and pulmonary issues. ECF No. 160 at 108. Seldon reported that he experienced asthma symptoms less than two days per week, used his rescue inhaler more than two days a week, and awoke during the night regularly. Id. He expressed that his asthma did not interfere with his regular daily activities and that he had not had any asthma attacks in the previous month. Id. at 108-113. The medical provider characterized his asthma as "mild persistent" and his asthma control as "good." Id.
Sutherland performed another examination on May 7, 2018. Id. at 100-104. Seldon described daily symptoms triggered by exposure to cigarette smoke, indicated that his asthma posed a minor limitation to his activities of daily living, and stated that he had experienced one asthma attack in the past month. Id. Sutherland characterized his asthma as "intermittent," with "fair" control. Id.
Seldon returned for his annual evaluation at the chronic care clinic on May 21, 2019. Id. at 52-56. He reported that he experienced symptoms and used his rescue inhaler less than two days per week and that his only asthma trigger was cigarette smoke. Id. Sutherland classified Seldon's asthma as "intermittent" and noted that his status was "Improved - Less severe." Id.
In addition to his regular appointments, Seldon underwent a chest X-ray on April 26, 2019, that presented as normal, with no evidence of acute cardiopulmonary disease. Id. at 145.
Seldon's grievance history also suggests that Sutherland performed a respiratory test, EKG, and X-ray during the appointment on May 7, 2018. ECF No. 151-1 at 49. Seldon received a prescription for a rescue inhaler at all relevant times, see ECF No. 160 at 52-56, 79-80, 100-104, 108-113, 398, although he occasionally went several months without filling that prescription. Id. at 252-53, 255, 257, 259, 261. Notably, there is nothing in the record to suggest that his inhaler was ineffective in treating his asthma. ECF No. 3-1 at 9.
Throughout his time at SCI-Forest, Seldon frequently complained about the removal of his z-code and threatened to assault anyone who the prison assigned as his cellmate. ECF No. 150 | 30. Despite his threats, Seldon remained misconduct free and reported no issues with any of his cellmates during his first year on G-Unit. Id. ¶ 33.
On April 30, 2018, Seldon sent an Inmate Request form to Unit Manager Miller expressing concerns about the level of ETS at SCI-Forest. Id. ¶ 34. Miller responded by advising Seldon to "write Medical" with his concerns. Id. Miller also advised Seldon to submit a cell agreement form identifying a compatible cellmate. Id. Seldon claims that he submitted at least three cell agreements, but that prison staff ignored them. ECF No. 3 % 39.
On June 18, 2018, the prison assigned Ulysses S. Diaz, a smoker, as Seldon's cellmate in cell GB 2059. ECF No. 150 1 39. Approximately one month later - on July 27, 2018 - Seldon and Diaz were transferred to C-Unit and assigned to Cell CB 1013. Id. ¶ 45-46. Seldon and Diaz did not report any issues while celled together on G-Unit. Id. ¶ 42. After several months of celling together without issue, Seldon received a misconduct on January 9, 2019, for assaulting Diaz while celled together on C-Unit. Id. 147.
C. Standards of Review
Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment "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). Under this standard "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must to go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp, v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp,, 967 F.2d846, 851 (3dCir. 1992).
D. Analysis
As noted above, two claims remain in this action. With respect to the Corrections Defendants, Seldon asserts a failure to protect claim based on Defendants' alleged refusal to permit him to choose a non-smoking cellmate or transfer to a tobacco-free institution. Seldon also asserts a deliberate indifference claim against the Medical Defendants based on their refusal to recommend him for transfer to a non-smoking institution and failure to provide adequate medical care for his asthma.
The Correction Defendants seek summary judgment on two grounds. First, they assert that Seldon failed to properly exhaust his administrative remedies with respect to his failure to protect claim because he never identified Lee, Miller, Meely, or Mahaney in any pertinent grievance. Alternatively, they contend that Seldon has failed to adduce any evidence to support his Eighth Amendment claim. The Medical Defendants, Maxa and Sutherland, argue that Seldon received constitutionally adequate medical care throughout his time at SCI-Forest and that they lacked the authority to order his transfer to another institution. Each argument will be addressed in turn.
1. Exhaustion
In broad brush, the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (the "PLRA"), requires a prisoner to exhaust any available administrative remedies before he may bring an action pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). This exhaustion requirement applies to all claims relating to prison life which do not implicate the duration of the prisoner's sentence. Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the statute requires "proper exhaustion," meaning that a prisoner's completion of the administrative review process must also satisfy the applicable procedural rules of the prison's grievance system. Fennell v. Cambria County Prison, 607 Fed.Appx. 145, 149 (3d Cir. 2015). A procedurally defective administrative grievance, even if pursued to final review, precludes action in federal court. Id. Failure to exhaust administrative remedies under the PLRA is an affirmative defense that must be pleaded and proven by defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
The grievance system utilized in Pennsylvania's prison system requires inmates to satisfy a three-step grievance and appeals process. See Grievance System Policy DC ADM-804; Smith v. Sec. of Pa. Dept. of Corrections, 2018 WL 279363, at *2 (W.D. Pa. Jan. 3, 2018). First, the inmate must "legibly set forth all facts and identify all persons relevant to his claim in a grievance which will then be subject to 'initial review.'" Smith, 2018 WL 279363, at *2 (citing Spruill v. Gillis, 372 F.3d 218, 233 (3d Cir. 2004)). Second, the initial review must be appealed to the Facility Administrator for a second level of review. Id. Finally, "the inmate is required to file an appeal to the Secretary's Office of Inmate Grievances and Appeals ("the Secretary's Office")." Id. Once these three steps have been satisfied, a grievance has ordinarily been administratively exhausted for purposes of the PLRA.
Apropos to the instant case, however, DC-ADM 804 contains an additional requirement:
that the inmate's grievance must "identify individuals directly involved in the event(s)." ECF No. 151-1 at 17. See also Chaney, 2020 WL 7864202, at *5 (noting that the DOC's grievance policy requires an inmate to identify the offending individuals targeted in the grievance); Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004) (describing the identification requirement as "mandatory"). Courts characterize the satisfaction of this requirement as "proper exhaustion." Smith, 2018 WL 279363, at *3 (noting that a grievance must be fully exhausted to final review and "properly exhausted"). Moreover, because the identification requirement is mandatory, "a Pennsylvania inmate's failure to properly identify a defendant constitute] a failure to properly exhaust his administrative remedies under the PLRA." Williams v. Pa, Dep 't of Corr., 146 Fed.Appx. 554, 557 (3d Cir. 2005). When there is no factual dispute concerning this deficiency, summary judgment is appropriate. See, e.g., Byrdv. Shannon, 715 F.3d 117, 127 (3d Cir. 2013) (holding that the district court "properly granted summary judgment" in favor of the defendant because of the inmate-plaintiffs failure to name the defendant in his grievance); Johnson v. Townsend, 314 Fed.Appx. 436 (3d Cir. 2008) (same).
Conversely, courts in this district have occasionally characterized an inmate's failure to properly exhaust as a form of procedural default. See, e.g., Wright, 3731957, at *6.
In the instant case, there are two grievances in the record that pertain to Seldon's ETS claims: Grievance No. 736876, filed on August 30, 2018, and Grievance No. 769703, filed on January 7, 2019. ECF No. 151-1 at 48; ECF No. 151-2 at 1. See also ECF No. 151-2 at 45. Both grievances were fully appealed to final review. Id.
In Grievance No. 736876, Seldon primarily asserted that Sutherland, one of the Medical Defendants, ignored his complaints about his "asthma acting up" and his "lungs get[ting] tight" when exposed to ETS. ECF No. 151-1 at 49. Seldon also alleged that he spoke to "staff members" about his desire to be transferred to a non-smoking facility. ECF No. 151-1 at 49. However, the only staff members that he identified by name were non-Defendants Kim Smith and Tonya Brandt. Id.
Grievance No. 769703 contained similar medical allegations against Sutherland. In addition, Seldon complained that his "unit team" told him to attempt to resolve his ETS concerns by submitting a cell agreement with a non-smoker. ECF No. 151-2 at 2. Seldon stated that he attempted to do so but that "staff members, Sgt. Peers, Unit Manager Mr. Miller, c/o Macanis and counselor Mr. Hopkins" told him that he would have to "go through medical." Id. He also acused prison medical staff of ignoring several of his sick call requests. Id. at 3.
As noted by Defendants, Seldon failed to identify Lee, Meely, or Mahaney in either grievance. Nor do his allegations create any inference that those Defendants may have been "fairly within the compass of [the] grievance." Spruill, 372 F.3d at 234. In addition, the Court has independently reviewed the entire administrative record, including Seldon5 s appellate submissions and the DOC's responses, and cannot locate any reference to those three Defendants in any subsequent administrative filings. Simply put, there is nothing in the record to suggest that prison officials ever became aware of Seldon's allegations against Lee, Milly, and Mahaney through the grievance process. In the absence of any material dispute concerning Seldon's failure to exhaust his claims against those Defendants, summary judgment must be entered in their favor.
Because Defendants' exhaustion defense is dispositive as to Lee, Meely, and Mahaney, the Court need not reach the merits of Seldon's underlying claim against those Defendants. See, e.g., Chaney v. Bednard, 2020 WL 7864202, at *4 (W.D. Pa. Dec. 31, 2020) ("Once a defendant properly raises exhaustion, the district court must consider it as a threshold matter.") (citing Downey v. Pa. Dep 't of Corr., 968 F.3d 299, 304-05 (3d Cir. 2020); Brown v. Sprenkle, 827 Fed.Appx. 229, 231 (3d Cir. 2020) ("[E]xhaustion of administrative remedies is a threshold issue that the District Court must address before it can reach the merits of a prisoner's complaint.").
In contrast, Defendant Miller is clearly identified in Grievance No. 769703. In both that grievance and his verified Complaint, Seldon accuses Miller of ignoring his attempts to submit a cell agreement with a non-smoking cellmate. Because this claim has been fully exhausted, the Court will proceed to review it on its merits.
2. Deliberate indifference (Miller)
In Helling v. McKinney, the United States Supreme Court recognized that a prisoner may state an Eighth Amendment claim for exposure to levels of ETS that pose an unreasonable risk of serious damage to the prisoner's future health. Helling, 509 U.S. 25, 35 (1993); see also Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003). An inmate alleging such a violation can base his claim on either a present or future injury, both types involving an objective and subjective element. For a present injury case, a plaintiff must show (1) a sufficiently serious medical need related to the ETS exposure and (2) deliberate indifference by prison authorities. Atkinson, 316 F.3d at 266. For a future injury case, a plaintiff must show (1) that "the risk of which [plaintiff] complains is not one that today's society chooses to tolerate," and (2) deliberate indifference by prison authorities. Helling, 509 U.S. at 36. Because it is unclear which type of injury Seldon is alleging, the Court will consider whether the record supports a claim under either paradigm.
a. Present injury
To the extent that Seldon alleges a present injury from exposure to ETS, he has failed to adduce evidence to create a triable issue of disputed material fact as to either element of his claim. It is undisputed that Seldon suffers from asthma and that his condition renders exposure to ETS uncomfortable. However, there is no evidence in the record to indicate that Seldon's asthma rose to the level of a "serious medical need" related to ETS exposure, Atkinson, 316 F.3d at 266. Seldon visited the chronic care clinic on five occasions during his incarceration at SCI-
Forest, and on each occasion his asthma was deemed "intermittent" and "mild" - the lowest forms of severity. Seldon complained about ETS triggering his symptoms on one of those occasions, see ECF No. 160 at 100-104, but indicated that his asthma only imposed a minor limitation on his daily activities and that he had experienced only one asthma attack in the previous month. Similarly, the medical request slips that he allegedly submitted while housed on G-Unit stated only that exposure to cigarette smoke "bothered his breathing" and occasionally forced him to "use [his] inhaler." ECF No. 3-1 at 5-9. Nothing in the record suggests that he experienced any acute distress or that his inhaler was ineffective in managing his symptoms. Courts have routinely rejected deliberate indifference claims based on minor symptoms of this nature. Mearin v. Swartz, 2014 WL 1922786, at * 11 (W.D. Pa. May 14, 2014) (collecting cases for the proposition that "claims brought by prisoners who allege injuries such as eye irritation, nausea, headaches and breathing problems but fail to link these symptoms to ETS exposure" are routinely dismissed). See also Spellman v. Secy Pa, Dept of Corr., 751 Fed.Appx. 251, 253 (3d Cir. 2018) (although plaintiff "complained of a 'smoking cellie' and had a history of asthma," he could not demonstrate "a serious medical need related to ETS exposure" where the record indicated that his asthma symptoms were mild and well-controlled); Murray v. Wetzel, 2021 WL 1173001, at *10 (M.D. Pa. Mar. 29, 2021) (inmate diagnosed with allergic rhinitis failed to demonstrate serious medical injury from ETS where the record revealed that he only sought medical attention on a handful of occasions and was able to manage his condition with an antihistamine prescription).
Turning to the subjective prong, Seldon must demonstrate that Miller was deliberately indifferent to the impact of ETS on his asthma. At the outset, the Court notes that, although Seldon shared a cell with Diaz for almost seven months, he only spent approximately forty days in Miller's unit with Diaz before being transferred. Outside of that limited span of time, Miller had no control over Seldon's placement with Diaz. The record does not contain any evidence that Seldon attempted to submit a cell agreement or sought medical attention during that brief period. Rather, when Seldon contacted Miller in writing about his asthma and ETS, Miller advised him to "write Medical" about his concerns, a response which does not suggest deliberate indifference.
The prison assigned Diaz to Seldon's cell on June 18, 2018 and transferred Seldon and Diaz to C-Unit on July 27, 2018.
It is not clear from the record whether Seldon ever had to share a cell with a smoker in G-Unit prior to Diaz. Although he occasionally complained about cigarette smoke prior to Diaz's arrival, he has not identified any prior cellmates who smoked, the frequency and severity of their tobacco use, or the duration of their cohabitation.
It is also undisputed that SCI-Forest implemented and attempted to enforce a no-smoking policy, a factor which the United States Supreme Court has stated "will bear heavily on the inquiry into deliberate indifference." Helling, 509 U.S. at 36. Defendants have presented uncontradicted evidence that inmates received warnings or misconducts when they were caught or reported for smoking. ECF No. 150 ¶¶ 18, 22-23 (noting that 42 misconducts for smoking were issued at SCI-Forest in 2017, and another 30 in 2018). Despite the existence of this policy, there is nothing in the record to suggest that Seldon ever attempted to report Diaz (or any other inmate) to Miller for violating the smoking ban or that Miller observed an inmate smoking in his presence and failed to take action. For each of these reasons, summary judgment is warranted. See, e, g., Slaughter v. Rogers, 408 Fed.Appx. 510 (3d Cir. 2010) (finding that evidence of a smoking policy and citations for violating that policy undermined inmate's allegation of deliberate indifference); Barney v. Pa. Dep't of Corr., 2021 WL 794562, at *9 (M.D. Pa. Mar. 2, 2021) ("[G]iven the responsiveness displayed by prison officials and their adherence to the DOC no-smoking policy, Plaintiffs ETS claim fails.").
b. Future injury
Seldon's future injury claim, to the extent that he is asserting one, fares no better. In order to sustain a future injury claim based on exposure to ETS, Seldon must establish that:
(1) he has been exposed to unreasonably high levels of ETS contrary to contemporary standards of decency; and (2) prison authorities were deliberately indifferent to his exposure to ETS. Brown v. U.S. Justice Dep% 271 Fed.Appx. 142, 144 (3d Cir. 2008) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). As explained by the Court of Appeals for the Third Circuit:
[T]he first prong of the Helling test is an objective one: '[The prisoner] must show that he himself is being exposed to unreasonably high levels of ETS.5 [Helling], 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d22. With respect to the objective factor ... the Eighth Amendment requires 'a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwilling to take such a risk.' Id. at 36, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (emphasis in original). The Court stated: 'In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.' Id.
The second prong of the Helling test is a subjective one: whether prison officials were deliberately indifferent to a serious risk of harm. Id. at 36, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22. The Supreme Court has held that 'a prison official cannot be found 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 facts from which an inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.' Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003).
With respect to the objective prong, courts have traditionally distinguished between situations presenting occasional and sporadic exposure to ETS and those involving constant immersion in unwanted cigarette smoke. In Helling, for example, the United States Supreme Court determined that being forced to bunk with a cellmate who smoked five packs of cigarettes a day exposed the plaintiff to an unreasonable risk of harm from ETS exposure. Helling, 509 U.S. at 35. In Atkinson, the Third Circuit held that a prisoner had stated an Eighth Amendment claim after alleging that he had been forced to share a cell with "constant" smokers for many months. Atkinson, 316 F.3d at 259.
In Mearin, on the other hand, the court rejected an ETS-exposure claim brought by two inmates because "the amount of time that [they] spent with smoking cellmates was short, their complaints are relatively minor and are not linked to ETS exposure and the Defendants have presented evidence that the ventilation system make it unlikely that they were exposed to any significant level of ETS." Mearin, 2014 WL 1922786, at *16. Other courts have reached the same conclusion where the plaintiffs allegations were vague and unsubstantiated or suggested only occasional ETS exposure. See, e.g., Brown v. US. Justice Dept., 271 Fed.Appx. 142, 144 (3d Cir. 2008) ("[D]espite Brown's general claims, he did not specify how he was exposed to levels of ETS that pose an unreasonable risk of damage to his future health."); Richarson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001) ("[Sporadic and fleeting exposure" to ETS does not constitute an "unreasonably high level[]" even if it is "unwelcome and unpleasant"); Belland v. Matachiski, 2009 WL 1585811, at *5-6 (M.D. Pa. June 3, 2009) (inmate with asthma failed to show that he was injured by ETS or that he was exposed to it at a level that society is unwilling to accept).
As noted above, Seldon only shared a cell with Diaz for about forty days while housed in Miller's unit. Thus, even if Miller did ignore Seldon's attempts to procure a non-smoking cellmate, as alleged in the Complaint, that omission forced Seldon to share a cell with Diaz for only a brief time before his transfer to C-Unit. See Mearin, 2014 WL 1922786, at *12 (level of ETS smoke experienced by plaintiff was not "intolerable" where he was celled with smokers for durations of seven days, eight days, four days, two weeks, and two months); Oliver v. Deen, 11 F.3d 156, 159 (7th Cir. 1996) (no deliberate indifference where inmate was forced to house with a smoker for 133 days). Seldon did not submit any medical request slips, cell agreements, or report any other inmates for illicitly smoking during that time. Id. |Tf 23-27. Even more critically, Seldon has not submitted any evidence concerning the pervasiveness of ETS in the prison or his cell. It is unknown how frequently Diaz smoked or how long Seldon was exposed to ETS on each occasion. In the absence of such evidence, Seldon cannot satisfy the objective prong of the Helling test. Mearin, 2014 WL 1922786, at * 16. See also Spellman, !51 Fed. Appx. at 253 (affirming summary judgment in favor of defendants where plaintiff failed to adduce evidence concerning how often he was exposed to ETS, "how many cigarettes his cellmates smoked, or how long he was exposed to the smoke on each occasion").
Even if Seldon could establish that he was exposed to unreasonably high levels of ETS, as opposed to sporadic and occasional exposure, he cannot satisfy the subjective element of his future injury claim for the same reasons outlined above. The limited time that Seldon spent in Miller's unit, coupled with the prison's no-smoking policy and the lack of any evidence that Miller failed to enforce that policy, supply no basis from which a trier of fact could conclude that Miller was deliberately indifferent to Seldon's medical needs. Summary judgment is warranted. 3. Deliberate indifference (Maxa and Sutherland)
Turning to the Medical Defendants, Seldon asserts that Maxa and Sutherland violated the Eighth Amendment's prohibition against cruel and unusual punishment by failing to treat his serious medical needs. See Estelle v. Gamble, 429 U.S. 97 (1976) (stating that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment") (internal quotation omitted). Seldon's allegations take two forms: a failure to provide adequate treatment for his asthma, and a refusal to recommend that he be transferred to a non-smoking institution.
To establish a violation of his constitutional right to adequate medical care, a plaintiff is required to allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of resultant pain and risk of permanent injury." White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
At the outset, there is no question that Seldon received constitutionally adequate treatment for his asthma. Sutherland and other medical professionals at SCI-Forest routinely evaluated Seldon's asthma and characterized it as "mild" and "intermittent," the lowest range of severity. He received a chest X-ray, breathing tests, and was prescribed a rescue inhaler. There is no evidence in the record to suggest that his asthma was inadequately controlled through these measures; to the contrary, Seldon typically indicated that his asthma did not interfere with his activities of daily living and that his asthma attacks were infrequent. Nor does Seldon contend that he should have received some other treatment for his condition than what he was prescribed. Courts have "consistently rejected Eighth Amendment claims where," as in the instant case, "an inmate has received some level of medical care." Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018) (quoting Clarkv. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)). See also Wisniewski v. Frommer, 751 Fed.Appx. 192 (3d Cir. 2018) (noting that "there is a critical distinction 'between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'") (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)).
Seldon's real complaint with Maxa and Sutherland appears to be that they refused to order his transfer to a tobacco-free facility. This claim fails for at least two reasons. As an initial matter, the Medical Defendants have presented uncontested evidence that they lacked the authority to order the DOC to place an inmate in a particular institution or otherwise dictate an inmate's housing status. See ECF No. 159-4. It is axiomatic that the Medical Defendants cannot be held liable for failing to take an action that they lacked the authority to take. See, e.g., Murray, 2021 WL 1173001, at *9 ("The record demonstrates that [the prison physician] . . . explained her inability to resolve his housing situation or provide a mask based on constraints associated with her position in the medical department and DOC policies. There is not a scintilla of evidence that Defendant. . . acted with deliberate indifference to Murray's medical needs.").
To the extent that Seldon faults Sutherland for failing to issue a recommendation that he be transferred to another facility, it is well-settled that "an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim." Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional claims because "the exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) ("[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.")). In other words, "where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983." Tillery, 2018 WL 3521212, at *5 (citing Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009) (characterizing a dispute over medication as the type of "disagreement over the exact contours of [plaintiffs] medical treatment" that does not violate the constitution)).
Such is the case here. The record clearly reflects that Sutherland and Maxa exercised their professional judgment in evaluating the severity of Seldon's asthma, characterizing it as as "mild" and "intermittent," prescribing a rescue inhaler for his symptoms, and declining to issue a medical recommendation that any particular housing status was necessary. The record also demonstrates that this course of treatment effectively managed Seldon's asthma symptoms. While Seldon plainly disagrees with the Medical Defendants' exercise of judgment, his dissatisfaction amounts to nothing more than a "disagreement between an inmate and doctors over alternate treatment plans." Tillery, 2018 WL 3521212, at *5. Under such circumstances, summary judgment is appropriate. Id. (citing Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009).
III. Conclusion
For the reasons stated herein, it is respectfully recommended that the motions for summary judgment filed by Defendants Daniel Lee, Sean Mahaney, Scott Mealy, and Gregory Miller [ECF No. 148] and Defendants Robert Maxa and William Sutherland [ECF No. 156] each be granted. Judgement should be entered in favor of all Defendants on all claims.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nam v. Frank, 488 F.3d 187 (3d Cir. 2007).