Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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Case 2:03-cv-02288-SMM-MEA Document 64 Filed 10/06/2005 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

JIMMIE O. BEASLEY, JR.,

) ) Plaintiff, ) ) vs. ) ) A R I Z O N A D E P A R T M E N T O F) CORRECTIONS; et al., ) ) Defendants. ) _________________________________ )

No. CIV 03-2288-PHX-SMM ORDER

Pending before the Court are Defendants' Motion for Summary Judgment [Doc. No. 57], and Plaintiff's Cross-Motion for Summary Judgment [Doc. No. 55]. After consideration of the arguments advanced by the parties, the Court makes the following rulings. BACKGROUND Plaintiff is incarcerated at the Cook Unit of the Arizona State Prison Complex-Eyman in Florence, Arizona. Plaintiff alleges that Defendants have violated his Eighth Amendment right against cruel and unusual punishment by failing to enforce the prison non-smoking policy. Specifically, Plaintiff contends that he is subjected to an unreasonable level of Environmental Tobacco Smoke (ETS) which has adversely impacted his current and future physical health as a direct result of Defendants' tacit approval of inmates smoking inside the Cook Unit. Plaintiff contends that 20 out of 34 inmates housed in the Cook Unit smoke "all day every day" in the indoor inmate living area, that the Unit has poor ventilation, and that Defendants have turned a blind eye to their smoking. [Doc. No. 56 at 2].

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It is undisputed that under Arizona Department of Corrections (ADOC) policy and Arizona statute, inmates are prohibited from smoking inside any prison building. Under the ADOC policy, inmates who smoke inside are subject to disciplinary action. ADOC also prohibits hand-held portable lighters, and electric lighters have been made available at outside smoking areas to confine smoking to designated areas in accordance with the policy. Smoke detectors have been installed in inmate housing areas to alert prison officials of possible violations of the non-smoking policy. Over the one-year span between November 2002 and November 2003, the year before Plaintiff initiated this case, ADOC processed over 30 disciplinary actions against inmates in the Cook Unit for violation of the policy. The policy also provides for a grievance measure where inmates concerned about second-hand smoke may file a complaint with ADOC to address enforcement issues. Plaintiff filed a complaint with ADOC regarding the alleged smoking in the Cook Unit, which was reviewed, and prison officials were allegedly reminded by their superiors to enforce the policy. Plaintiff has been treated for symptoms of congestion, sinus problems, and difficulty breathing, all related by ADOC medical personnel to Plaintiff's allergies and susceptibility to hay fever. ADOC asserts that Plaintiff's treated medical problems have never been related to second-hand smoke. Plaintiff is a former smoker. STANDARD OF REVIEW A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 24 F.3d at 1130. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be "such that a

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reasonable jury could return a verdict for the nonmoving party." Id.; see Jesinger, 24 F.3d at 1130. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 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." Id. at 322; see Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). However, the movant must be clearly entitled to prevail as a matter of law, "viewing the evidence and inferences which may be drawn therefrom in the light most favorable to the adverse party." Jones v. Halekulani Hotel, Inc., 557 F.2d 1308, 1310 (9th Cir. 1977). The Court may not grant summary judgment where the record, including documents and pleadings, establishes facts that give rise to contradictory inferences, one of which supports the party opposing the motion. United States v. Lange, 466 F.2d 1021, 1026 (9th Cir. 1972). Moreover, the Court "can [] consider [only] admissible evidence in ruling on a motion for summary judgment." See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). However, "[t]o survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56." Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001); Federal Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) ("the nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment."). DISCUSSION I. Eighth Amendment Claim In order for Plaintiff to establish a violation of the Eighth Amendment here, he must prove that Defendants have, with deliberate indifference, "exposed him to levels of [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health." Helling v. McKinney, 509 U.S. 25, 35 (1993). Plaintiff must provide "objective" evidence of the degree of his exposure and its effect on him and "subjective" evidence of -3Case 2:03-cv-02288-SMM-MEA Document 64 Filed 10/06/2005 Page 3 of 7

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deliberate indifference by prison officials. Id. at 35-37; see also Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294 (1991). "Anecdotal accounts" of smoking at the jail are insufficient. Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998). Moreover, Plaintiff must prove that prison officials knowingly and unreasonably disregarded an objective intolerant risk of harm. Id. at 943, quoting Farmer, 511 U.S. at 846. A. Objective Prong

To satisfy the objective prong of the Eighth Amendment analysis here, Plaintiff must show that (1) "he himself is being exposed to unreasonably high levels of" second-hand smoke; and (2) that the exposure creates a risk of harm "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney, 509 U.S. 29, 35-36 (1993). Plaintiff asserts that 20 out of 34 inmates housed in the Cook Unit smoke "all day every day" inside the Unit's common living area and that the unit is overcrowded with inmates and has poor ventilation. Plaintiff fails to offer any evidence on these points and rests upon his conclusory allegations. "Anecdotal accounts" of smoking at the jail are insufficient. Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998). Plaintiff's dispute must be genuine, that is, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Id.; see Jesinger, 24 F.3d at 1130. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Here, Plaintiff's failure to substantiate his claim of unreasonable levels of ETS in the Cook Unit is fatal to his case. Although the Court construes pro se pleadings liberally, Plaintiff has failed to offer any evidence in the form of affidavits or otherwise that could lead a reasonable jury to return a verdict in his favor. Further, there is no evidence that his medical issues stem from ETS. Because Plaintiff's claim is factually unsupported, he cannot establish an objective Eighth Amendment violation as a matter of law. The Court recognizes that the amount of ETS in the Cook Unit on a daily basis is uncertain; however, at this stage of the proceedings, Plaintiff must be able to rest his claims on some sort of factual support. The Court finds that based on the record before it, Plaintiff's -4Case 2:03-cv-02288-SMM-MEA Document 64 Filed 10/06/2005 Page 4 of 7

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assertions cannot be taken as true because there is simply no evidence before the Court that 20 inmates smoke "all day every day" inside the Cook Unit, or that the level of ETS in the Unit is unreasonable. Without more, Plaintiff's Eighth Amendment claim must fail. See Henderson v. Sheahan, 196 F.3d 839, 853 (7th Cir.1999); Oliver v. Deen, 77 F.3d 156, 159 (7th Cir.1996). Although the Court need not proceed any further, the Court now turns to the subjective prong. B. Subjective Prong

To satisfy the subjective standard, Plaintiff must prove deliberate indifference, i.e., that prison officials knowingly and unreasonably disregarded an objective intolerant risk of harm. Scott v. District of Columbia, 139 F.3d 940, 943 (D.C. Cir. 1998). 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 the 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 (1994). Here, it is undisputed that Defendants have taken various steps to protect inmates from the dangers of ETS. First, ADOC policy prohibits inmates from smoking inside any prison building. Under the ADOC policy, inmates who smoke inside are subject to disciplinary action. Second, ADOC prohibits hand-held portable lighters, and electric lighters have been made available at outside smoking areas to confine smoking to designated areas in accordance with the policy. Third, smoke detectors have been installed in inmate housing areas to alert prison officials of possible violations of the non-smoking policy. Fourth, over the one-year span between November 2002 and November 2003, the year before Plaintiff initiated this case, ADOC processed over 30 disciplinary actions against inmates in the Cook Unit for violation of the policy. However, Plaintiff contends that despite these measures, Defendants refuse to adequately enforce the policy and inmate smoking is pervasive in the Cook Unit. The Court finds that Defendants have taken several steps to protect the health of the inmates in the Cook Unit. However, the Court recognizes that if inmates in the Cook Unit are permitted to smoke inside throughout the day in clear contravention of the no-smoking policy, -5Case 2:03-cv-02288-SMM-MEA Document 64 Filed 10/06/2005 Page 5 of 7

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then Defendants alleged efforts to control indoor inmate smoking would be unsatisfactory and may give rise to a viable Eighth Amendment claim. See Warren v. Keane, 196 F.3d 330, 333 (2d Cir.1999) ("Plaintiffs' allegations, if believed, overwhelmingly describe a prison environment permeated with smoke resulting from, inter alia, under-enforcement of inadequate smoking rules, overcrowding of inmates, and poor ventilation."); Atkinson v. Taylor, 316 F.3d 257 (3rd Cir. 2003). However, as previously addressed, there is simply no evidence to support Plaintiff's position that pervasive smoking occurs on a daily basis in the Cook Unit. It follows that there is no basis to assert that Defendants are deliberately indifferent, particularly in light of the various measures that have been taken to control the level of ETS. Significantly, Helling did not read the Eighth Amendment as mandating smoke-free prisons. Therefore, to the extent there are violations of the no-smoking policy, they are not actionable under the Eighth Amendment unless they rise to the level of deliberate indifference. Again, Plaintiff has failed to meet his burden to factually support his claim, and without more, Defendants cannot be found deliberately indifferent as a matter of law. II. Qualified Immunity In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court explained the two-part inquiry a court must make in order to determine whether a state official is entitled to qualified immunity. First, a court must determine whether, taken in the light most favorable to the party asserting the injury, the facts alleged show an defendant's conduct violated a constitutional right. Second, if the facts do establish that a constitutional right was violated, the court must then determine whether the right is clearly established. Id. at 201. To be clearly established "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). As previously addressed, Plaintiff has not set forth any facts substantiating his claim of an Eighth Amendment violation. Therefore, Defendants are entitled to qualified immunity for purposes of summary judgment because Plaintiff has not established a violation of his Eighth Amendment right under the first part of the Saucier analysis. However, it bears noting that

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Plaintiff's right to be free of unreasonable levels of ETS under the Eighth Amendment is clearly established. See, e.g., Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir.2001); Warren v. Keane, 196 F.3d 330, 333 (2d Cir.1999) ("it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate's exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate's health." ); Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir.1995); Atkinson v. Taylor, 316 F.3d 257 (3rd Cir. 2003). Therefore, if Plaintiff had substantiated sufficient facts to support his Eighth Amendment claim, Defendants would not be entitled to qualified immunity. Accordingly, Defendants are entitled to qualified immunity here as Plaintiff has failed to establish a violation of his Eighth Amendment rights. CONCLUSION For the foregoing reasons, Defendants are entitled to judgment as a matter of law.

Accordingly, IT IS THEREFORE ORDERED Defendants' Motion for Summary Judgment [Doc.

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No. 57], is hereby GRANTED. IT IS FURTHER ORDERED Plaintiff's Cross-Motion for Summary Judgment [Doc. No. 55], is hereby DENIED. IT IS FURTHER ORDERED this matter is hereby terminated, and the Clerk shall enter judgment accordingly.

DATED this 5th day of October, 2005.

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