Henry v. Epps et al
Filing
56
MEMORANDUM OPINION. Signed by District Judge Michael P. Mills on 5/15/15. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
WILLIE L. HENRY, JR.
PLAINTIFF
v.
No. 4:14CV5-MPM-SAA
CHRISTOPHER EPPS, ET AL.
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Willie Lee Henry who
challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of the Prison
Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed this suit.
Henry alleges that the defendants violated the Eighth Amendment prohibition against cruel and
unusual punishment by placing him in housing where he was exposed to environmental tobacco
smoke. The defendants have filed a motion [48] for summary judgment; the plaintiff has not
responded to the motion, and the deadline to do so has expired. For the reasons set forth below, the
motion by the defendants for summary judgment will be granted, and judgment will be entered for the
defendants.
Summary Judgment Standard
Summary judgment is appropriate if the “materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials” show
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) and (c)(1). “The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in court, it would be insufficient to permit the
nonmoving party to carry its burden.” Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629,
633 (5th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066
(1988)). After a proper motion for summary judgment is made, the burden shifts to the non-movant to
set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Beck, 204 F.3d at 633; Allen v.
Rapides Parish School Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline
Company, 136 F.3d 455, 458 (5th Cir. 1998). Substantive law determines what is material. Anderson,
477 U.S. at 249. “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Id., at 248. If the non-movant sets forth specific facts
in support of allegations essential to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327.
“Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 89 L. Ed. 2d 538 (1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th
Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the non-moving
party. Allen, 204 F.3d at 621; PYCA Industries, Inc. v. Harrison County Waste Water Management
Dist., 177 F.3d 351, 161 (5th Cir. 1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187,
1198 (5th Cir. 1995). However, this is so only when there is “an actual controversy, that is, when both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994); see Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). In the absence of
proof, the court does not “assume that the nonmoving party could or would prove the necessary facts.”
Little, 37 F.3d at 1075 (emphasis omitted).
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Undisputed Material Facts
At all times pertinent to the present cause, Willie Lee Henry was an inmate in the custody of
the Mississippi Department of Corrections (“MDOC”). Henry is currently in the Free World, as he
was recently released on parole [44]. He filed the instant complaint on January 15, 2014, alleging that
when he was transferred back to the Mississippi State Penitentiary on August 22, 2013, from the
Marshall County Correctional Facility (MCCF) that environmental tobacco smoke in his unit
aggravated his pre-existing asthma condition. This, in turn, caused him to use a large amount of
asthma inhalers [1 at 4]. Henry states that he was seen in the medical clinic at the Mississippi State
Penitentiary for irritated eyes and throat from tobacco smoke from November 17, 2013, through
November 23, 2013 [1 at 6]. During that time his eyes were constantly swollen and burning and his
throat was scratchy and sore, all as a result exposure to tobacco smoke[1 at 6]. On November 26,
2013, he submitted a sick call request for shortness of breath, sore throat, and burning eyes – and was
seen in the Mississippi State Penitentiary medical clinic on December 3, 2013 [1 at 6-7]. Henry was
treated for his complaints with two injections on December 3, 2013, and breathing treatments on five
occasions from December 4, 2013, through December 8, 2013 [1 at 7]. Henry underwent a chest xray on December 10, 2013 [1 at 7].
In response to Henry’s complaints about tobacco smoke, Deputy Warden Marshall Turner
visited him on December 11, 2013. Henry then received correspondence on December 16, 2013,
from Warden Ron King advising him that Turner had found no evidence of smoking in the his unit –
and urging Henry to report offenders who are smoking in his unit to staff for immediate corrective
action [1 at 7, 15]. Henry refused to provide information to staff regarding the identity of smokers in
his unit because he did not want “[the Mississippi Department of Corrections to] use [him] as an
informant and put [his] life in danger.” [1 at 7]. Henry seeks monetary damages and injunctive relief
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to prevent exposure to environmental tobacco smoke, as well as release from custody or transfer to a
smaller regional facility [1 at 5].
Injunctive Relief
The transfer of a prisoner out of the institution out of which his complaints arise renders his
requests for injunctive relief moot. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002); Zajrael v.
Harmon, 677 F.3d 353, 355 (5th Cir. 2012); See also Daniels v. Waller, 2006 WL 763115 at *1 (S.D.
Miss. 2006.) To show that his claims for injunctive relief have not become moot, Henry must show
that the claims are “capable of repetition yet evading review,” Harwick v. Brinson, 523 F.2d 798, 800
(5th Cir. 1975), by showing it likely that his parole would be revoked and he would return to
Mississippi Department of Corrections custody – and again be exposed again to environmental
tobacco smoke. Oliver, 276 F.3d at 741. Henry has not made that showing; as such, his claims for
injunctive relief will be dismissed as moot.
Environmental Tobacco Smoke
Henry’s only claim is that the defendants have violated the Eighth Amendment prohibition
against cruel and unusual punishment by permitting him to be exposed to environmental tobacco
smoke. The two-pronged analysis regarding a prisoner’s Eighth Amendment claims regarding
exposure to environmental tobacco smoke can be found in Helling v. McKinney, 509 U.S. 25, 113
S.Ct. 2475, 125 L.Ed.2d 22 (1993). First, a prisoner must provide objective evidence that he is “being
exposed to unreasonably high levels of [environmental tobacco smoke].” Helling, 509 U.S. at 35. To
analyze the first prong, the court must assess the seriousness of the potential harm and the likelihood
that environmental tobacco smoke will actually cause such harm. Helling at 36. The court must find
“whether society considers the risk . . . to be so grave that it violates contemporary standards of
decency to expose anyone unwillingly to such a risk.” Id. Sporadic and fleeting exposure to second-
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hand smoke, even if it causes coughing and nausea, does not rise to the level of a constitutional
violation. Id.; see also Oliver v. Deen, 77 F.3d 156, 158 (7th Cir. 1996) (denying Eighth Amendment
claim by asthmatic that smoke caused him to wheeze, gasp for breath and suffer dizziness and
nausea). Indeed, even sustained exposure to second-hand smoke has failed to rise to the level of an
Eighth Amendment violation. Oliver, 77 F.3d at 159 (133 days of sharing cell with smoker fails to
state Eighth Amendment claim); Guilmet v. Knight, 792 F.Supp. 93 (E.D. Wash. 1992) (sharing cell
with smoker for 15 days did not “pose . . . an unreasonable risk to [the non-smoking inmate’s health],
much less [deny him] ‘the minimal civilized measure of life’s necessities.’”)
Under the second prong of the Helling test, a prisoner must show that prison officials have
subjectively demonstrated “deliberate indifference” to his situation. Id. To prove deliberate
indifference, a prisoner plaintiff must prove that a prison official actually knows that an inmate faces a
substantial risk, but nonetheless fails to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S.
825, 114 S.Ct. 1970, 128 L.Ed.2d 811. The official must be aware of facts from which an inference
may be drawn that a substantial risk of serious harm exists – and must actually draw the inference. Id.
The plaintiff must show that the defendant acted with “obduracy and wantonness, not inadvertence or
error in good faith.” Callicut v. Anderson, 48 Fed.Appx. 916, 2002 WL 31114947, at *2 (citing
Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)).
With this standard in mind, courts should consider the following factors in evaluating
deliberate indifference to ETS: “the adoption of a smoking policy; the administration of that policy;
and ‘the realities of prison administration.’” Id. (citing Helling, 509 U.S. at 36-37). As an initial
matter, Henry has not satisfied the first prong of the Helling test – as he has presented only vague and
conclusory allegations that he has been exposed to unreasonably high levels of environmental tobacco
smoke without documentary support. Conclusory allegations are not, however, competent summary
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judgment evidence. See Richardson v. Oldham, 12 F.3d 1373, 1378 (5th Cir.1994). In addition, Henry
alleges only that the tobacco smoke caused wheezing and eye and throat irritation. As set forth above,
under the holdings in Helling and Oliver, supra, this level of discomfort does not rise to the level of a
constitutional violation. (“[S]poradic and fleeting exposure” to [environmental tobacco smoke] does
not constitute “unreasonably high levels,” even it if it “unwelcome and unpleasant” and causes
plaintiff discomfort, such as nausea and coughing. Richardson v. Spurlock, 260 F.3d 495, 498 (5th
Cir. 2001)). Henry’s medical records also show that Henry’s problems with tobacco smoke were
merely “sporadic and fleeting,” resulting only in irritation to the throat and eyes. See Henry’s MDOC
Medical Records, Bates Numbered 1-440. Henry’s medical records show only that he received
regular treatment for his preexisting asthma condition, mostly with the use of an inhaler, and he has
provided no medical evidence that he was treated for exposure to tobacco smoke.
Moreover, Henry has not satisfied the second prong of the Helling test – that the defendants
were deliberately indifferent to his serious medical needs by permitting Henry’s exposure to tobacco
smoke. Through a July 1, 2012, change in policy, all Mississippi Department of Corrections facilities
and property became tobacco-free, and any offender found in violation of this policy is subject to
punishment. [1 at 12]. Henry’s complaints were investigated by Deputy Warden Marshall Turner;
however, Henry simply did not agree with the Turner’s findings. [1 at 15]. Certainly, Henry has not
shown that any defendant “[knew] of and disregard[ed] an excessive risk to [Henry’s] health or
safety;” as such, he has not shown that any defendant acted with deliberate indifference. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). Thus, Henry’s claims arising out of exposure to environmental
tobacco smoke must be dismissed.
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Conclusion
For the reasons set forth above, the motion by the defendants for summary judgment will be
granted; the plaintiff’s claims for injunctive relief will be dismissed as moot; judgment will be entered
for the defendants as to the plaintiff’s claims regarding exposure to environmental tobacco smoke, and
this case will be closed.
SO ORDERED, this, the 15th day of May, 2015.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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