Emilio v. Nebraska Department of Correctional Services et al

Filing 87

MEMORANDUM AND ORDER that Britten's Motion for Summary Judgment 77 is granted, and Pavon's claims against Britten are dismissed with prejudice. The court has considered only the unsealed arguments and evidence in ruling on Britten's motion. Britten's Motion to File Under Seal 74 is granted. Accordingly, Filing Numbers 75 and 76 will remain under seal. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EMILIO PAVON,
Plaintiff,
v.
FRED BRITTEN,
Defendant.

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4:13CV3073

MEMORANDUM
AND ORDER

This matter is before the court on Defendant Fred Britten’s (“Britten”) Motion
for Summary Judgment (Filing No. 77). For the reasons explained below, Britten’s
motion will be granted.
I. BACKGROUND
Emilio Pavon (“Pavon” or “Plaintiff”) was incarcerated at the Tecumseh State
Correctional Institution (“TSCI”) when he filed this action on April 3, 2013.1 Britten,
the only remaining defendant in this case, was warden of the TSCI at all times
relevant to this action. Pavon brought this suit under 42 U.S.C. § 1983 against Britten
for violations of his Eighth Amendment rights. Specifically, Pavon claimed prison
staff failed to protect him from exposure to secondhand smoke and vapors from
cleaning chemicals while he was incarcerated at the TSCI.
Britten filed the summary-judgment motion at issue here on March 5, 2015. He
argued the evidence clearly shows that no genuine issue of material fact exists and he
is, therefore, entitled to judgment as a matter of law. (See Filing Nos. 77, 78, and 79.)
Britten submitted some evidence and briefing under provisional seal in support of the
motion (Filing Nos. 75 and 76), but these specific filings were not served on Pavon
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Pavon now resides at the Lincoln Correctional Center in Lincoln, Nebraska.
(See Filing No. 23, Pavon’s notice of address change.)

and, therefore, the court did not consider them in ruling on Britten’s summaryjudgment motion. Pavon has opposed the unsealed portions of Britten’s summaryjudgment motion. (See Filing Nos. 80, 81, and 82.)
II. SUMMARY JUDGMENT STANDARD
“Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Jackson
v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After the
movant has demonstrated the absence of a genuine issue of material fact, the
nonmovant must respond by submitting evidence that sets out specific facts showing
that there is a genuine issue for trial. Id. In doing so, the nonmovant must
substantiate his allegations with “sufficient probative evidence [that] would permit a
finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Moody
v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of
Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence is
insufficient to avoid summary judgment.” Id. “The basic inquiry is whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Diesel Mach., Inc.
v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks
and citations omitted). “Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at 1042).

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III. UNDISPUTED MATERIAL FACTS2
1.
Pavon was incarcerated at the TSCI at all times relevant to this action.
(Filing No. 1 at CM/ECF pp. 2, 4-5, Complaint.)
2.
Britten was warden of the TSCI at all times relevant to this action.
(Filing No. 1 at CM/ECF p. 4, Complaint.)
3.
Pavon was housed in Housing Unit 2D within the TSCI from 2007 to
2009. (Filing No. 1 at CM/ECF pp. 4-5, Complaint.)
4.
There were no tobacco violations in TSCI’s Housing Unit 2D between
2007 and 2009. (Filing No. 79-15 at CM/ECF p. 1, Houseman Aff.)
5.
Pavon was housed in Special Management Unit B within the TSCI from
2010 to 2013. (Filing No. 1 at CM/ECF p. 5, Complaint.)
6.
There was one tobacco violation in Special Management Unit B within
the TSCI between 2010 and 2013. (Filing No. 79-15 at CM/ECF p. 1, Houseman
Aff.)
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This court’s local rules require the party moving for summary judgment to file
a brief containing a “separate statement of material facts about which the moving party
contends there is no genuine issue to be tried and that entitles the moving party to
judgment as a matter of law.” This statement of facts must “consist of short numbered
paragraphs, each containing pinpoint references to . . . materials that support the
material facts . . . .” The opposing party must respond to the moving party’s statement
of material facts in a brief containing separate numbered paragraphs with citations to
supporting references and with identification of material facts that are disputed.
Properly-referenced material facts in the movant’s statement of facts are “considered
admitted unless controverted in the opposing party’s response.” NECivR 56.1. The
material facts below, appearing in numbered paragraphs, are those that have not been
properly disputed pursuant to this court’s local rules.
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7.
There are no documented fires occurring in housing units to which Pavon
was assigned during his time at the TSCI. (Filing No. 79-15 at CM/ECF p. 1,
Houseman Aff.)
8.
Staff at the TSCI enforce the rules prohibiting tobacco products and
usage within the TSCI. (Filing No. 79-15 at CM/ECF p. 1, Houseman Aff.)
IV. DISCUSSION
Liberally construed, Pavon alleged Britten subjected him to cruel and unusual
punishment when Britten failed to take steps to prevent Pavon from being exposed to
secondhand smoke and other “noxious chemicals.” Pavon alleged inmates smoked
tobacco and other unknown substances while prison staff routinely ignored the
smoking ban within the prison.3 Pavon complained to Britten on numerous occasions
with respect to this issue.
Conditions of confinement constitute cruel and unusual punishment where those
conditions result in a serious deprivation of “the minimal civilized measure of life’s
necessities” under contemporary standards of decency. Rhodes v. Chapman, 452 U.S.
337, 347 (1981). To prevail on a conditions of confinement claim, a plaintiff must
show: (1) that the prison conditions pose a substantial risk of harm; and (2) that the
prison official was deliberately indifferent to that risk. Farmer v. Brennan, 511 U.S.
825, 834 (1994).

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The court did not utilize the provisionally-sealed evidence in reaching its
decision in this case and the court will not refer to it in this order except to note it
demonstrates Pavon is suffering from somatic delusions in which he believes he can
smell secondhand smoke and chemical vapors, despite neither vapor being present.
(Filing No. 76-10 at CM/ECF p. 1, sealed affidavit by physician with knowledge of
the facts.) Pavon is aware he has been diagnosed with a delusional disorder, but
asserts the diagnoses is inaccurate. (See Filing No. 84 at CM/ECF p. 2.)
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The possession and use of tobacco and tobacco-related products and tobacco
substitutes are prohibited within facilities operated by the Nebraska Department of
Correctional Services of which the TSCI is a part. (Filing No. 79-12 at CM/ECF p.
2, Admin. Reg. 111.05.) Britten presented evidence that the smoking prohibition is
enforced within the prison. (Filing No. 79-15 at CM/ECF p. 1, Houseman Aff.)
Britten also presented evidence that only one smoking violation occurred within units
to which Pavon was assigned during the relevant time period. (Filing No. 79-15 at
CM/ECF p. 1, Houseman Aff.)
Pavon did not present any evidence to the contrary. Rather, in response to the
summary-judgment motion, he continued to assert, in conclusory fashion, that prison
officials routinely failed to enforce the smoking ban. In support of this allegation,
Pavon pointed to grievances he submitted to prison officials in which he complained,
in general terms, that staff were not enforcing the prison’s ban on smoking. (Filing
No. 80 at CM/ECF p. 2 (citing “Exhibit No. 60,” which is in the record at Filing No.
82-1 at CM/ECF pp. 76-79.) However, Pavon did not point to any specific instance
of an inmate smoking within his allegations or within his grievances to prison staff.
Stated another way, Pavon does not claim to have witnessed acts of smoking, much
less claim that he witnessed acts of smoking and then reported those acts to prison
officials who failed to take corrective action. Rather, Pavon offered only his general
and conclusory assertion that prison officials failed to enforce the ban on smoking.
Pavon also alleged in this action that inmates sprayed baby powder and cleaning
chemicals on the walls, floor, and furniture in order to mask the smell of smoke, and
also that he was exposed to noxious chemicals that were “allowed to linger in the air
for hours.” (Filing No. 1 at CM/ECF pp. 4-6, Complaint.) Pavon’s allegations reflect
he was particularly concerned about inmate-workers’ use of bleach solution to clean
the showers.
In response to Pavon’s allegations, Britten presented evidence that, at all
relevant times, the use of cleaning solution was rigidly controlled throughout the TSCI
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and chemical inventory was performed daily. (Filing No. 79-15, Houseman Aff.;
Filing No. 79-17, Flynn Aff.) In addition, based on the affidavit of the TSCI’s safety
specialist, the chemicals used by inmates all had a hazardous rating of “0” or “1”
based on National Fire Protection Association ratings, with a “0” rating indicating no
unusual hazard and a “1” indicating that the chemical “may be irritating.” (Filing No.
79-17, Flynn Aff.) There is no evidence in the record to support Pavon’s conclusory
allegations that staff failed to protect him from exposure to noxious chemicals.
In summary, Pavon did not present evidence from any objective source in
response to Britten’s summary-judgment motion. There is no evidence substantiating
Pavon’s allegations that he was exposed to smoke or noxious chemicals, much less
that any chemicals he was exposed to posed a substantial risk of harm to him. Thus,
the court finds there is no genuine issue of material fact and Britten is entitled to
judgment as a matter of law.
IT IS THEREFORE ORDERED that:
1.
Britten’s Motion for Summary Judgment (Filing No. 77) is granted, and
Pavon’s claims against Britten are dismissed with prejudice. The court has considered
only the unsealed arguments and evidence in ruling on Britten’s motion.
2.
Britten’s Motion to File Under Seal (Filing No. 74) is granted.
Accordingly, Filing Numbers 75 and 76 will remain under seal.
3.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 10th day of August, 2015.
BY THE COURT:

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Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
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