TATE v. JONES

Filing 43

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 03/20/2014; that Defendants' motion for summary judgment (Doc. 30 ) is GRANTED and that this action is DISMISSED WITH PREJUDICE. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TERRENCE EDMOND TATE,
Plaintiff,
v.
BILLIE MARTIN, J. KELLY, and
KENNETH M. JONES,
Defendants.

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1:10cv616

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff Terrence Edmond Tate, a prisoner in the custody
of the State of North Carolina, brought this action pursuant to
42 U.S.C. § 1983.

(Docs. 4, 9.)

He alleges that several prison

administrators, Defendants Billie Martin, Jerry Kelly, Jr., 1 and
Kenneth Jones, denied him adequate medical care and housing in
prison by failing to diagnose and treat his pneumonia, which
resulted in hospitalization, and by exposing him to secondhand
tobacco smoke – all in violation of the Eighth Amendment.
4 at 3.)

(Doc.

Before the court is Defendants’ motion for summary

judgment on all claims.

(Doc. 30.)

For the reasons set forth

below, the motion will be granted.

1

The corrected complaint originally listed only “J. Kelly,” (Doc. 4 at
1), but Defendants’ answer clarifies that “Jerry Kelly, Jr.” is that
Defendant’s full name (Doc. 21 at 1).

I.

BACKGROUND
The facts, in the light most favorable to Tate, establish

the following:
Beginning in April 2004, Tate was incarcerated at Albemarle
Correctional Institution (“ACI”).

(Doc. 4 at 9.)

On Thursday,

January 12, 2006, he declared a medical emergency, complaining
of chest pain.

(Doc. 9 at 2 (reporting date as January 11);

Doc. 26-1 at 35.)
Tate.

Dr. Sami Hassan, the doctor at ACI, examined

Although Tate reported chest pain, he presented with no

cough, no shortness of breath, and no cardiac history.
26-1 at 35.)

(Doc.

An ear, nose, and throat exam was normal, his

oxygen saturation was 99%, and his blood pressure was 138/92.
(Id.)

Tate reported he had been lifting weights a day earlier;

he “[i]ncline presses 225 [pounds].”

(Id.)

Tate

gave

had

pulled

instructed
sports.
Two
declared

him

a

not

muscle,
to

so

engage

he

in

any

The doctor believed
him

medication

strenuous

and

activities

or

(Id.; id. at 43, 46.)
days
a

later,

medical

on

emergency,

breathe.

(Id. at 35.)

however,

he

was

Saturday,

January

saying

that

14,
he

Tate

was

again

unable

to

According to a medical staff member,

“talking

continually

while

in

medical,”

presented no acute respiratory distress, and his breathing was
regular

and

even.

(Id.)

His

oxygen

2

saturation

was

98-99%.

(Id.)

He was given Tylenol for his discomfort and told to

continue his present medications.

(Id.)

The following day, Sunday, January 15, Tate was examined by
medical

staff

at

the

request

of

a

corrections

observed Tate lying on the floor of his cell.

officer,

who

(Id. at 34.)

The

incident was not reported as a medical emergency.

(Id. (“No

code 900 called.”))

Tate again complained of chest pain and

demanded

(Id.)

an

X-ray.

Medical

staff

examined

him

and

determined that his lungs were clear and that he was in “no
distress.”

(Id.)

The nurse noted Tate’s “facial grimaces” and

somewhat limited range of motion; yet, his vital signs appeared
normal, with blood pressure at 120/70 and oxygen saturation at
98-99%.

(Id.)

and to follow up.

Tate was directed to continue his medications
(Id.)

The following day, Monday, January 16, Tate again declared
a medical emergency, complaining of chest pain.

(Id.)

He was

seen by the medical staff, who noted that his breathing was
“deep, even, and unlabored” and that he was “yelling at staff,
stating ‘what do I need to do to get out of here?’”
34.)

(Id. at 33-

He was examined again; his skin was warm and dry, his lips

and nail beds were pink, and his blood pressure was 118/68.
(Id.

at

34.)

Tate

medications as ordered.

was

instructed

(Id. at 33.)

3

to

rest

and

take

his

On

Tuesday,

January

examined Tate again. 2

17,

Dr.

Hassan

(Id. at 42.)

returned

to

ACI

and

Dr. Hassan noted that Tate

complained of a cough and left-sided chest pain, but the doctor
found that Tate was in no acute distress.

(Id.)

Dr. Hassan

transferred Tate to Stanly Memorial Hospital (“SMH”) for further
testing.
and

(Id. at 46.)

ordered

an

There, Dr. Michael Hadnagy examined Tate

X-ray,

which

revealed

“near

complete

opacification of the left hemi-thorax due to a combination of
pulmonary consolidation and accumulating pleural fluid.”
at 47.)

(Id.

In other words, there was fluid in Tate’s left lung and

excess fluid in the space surrounding that lung, which made it
appear nearly opaque on the X-ray.
was in “no acute distress.”

Dr. Hadnagy found that Tate

(Id. at 46.)

The doctors at SMH

recommended that Tate be transferred to a hospital in Charlotte,
North Carolina, for “definitive care.”

(Id. at 58.)

Tate was admitted to the Charlotte hospital the following
day. 3

(Id.)

Once there, he underwent a “bronchoscopy, left

2

According to Tate, a doctor had not been available from Saturday to
Monday because of the holiday weekend.
(Doc. 9 at 5.)
The court
takes judicial notice of the fact that Monday, January 16, 2006, was
Martin Luther King Day, a federal holiday.

3

Tate alleges that his admittance was delayed because one of the two
corrections officers in charge of him refused to take him to Charlotte
on January 17; the officer’s shift was almost over and he wanted to
get back to ACI before the end of his shift. (Doc. 9 at 6-7.) Tate
does not provide any evidence other than this unsworn, conclusory
assertion, and neither corrections officer is currently a defendant in
the case.

4

thoracotomy and decortication of the left lung.” 4

(Id. at 54.)

In layman’s terms, a surgeon, Dr. Charles Harr, cut into Tate’s
chest and removed part of a lobe of his left lung.
Lang,

who

consulted

on

Tate’s

case,

Dr. Joseph

“suspect[ed]

.

.

.

community-acquired pneumonia” had caused the build-up of pleural
fluid.

(Id. at 52.)

discharge

papers.

Pneumonia was also the diagnosis on his
(Id.

at

54.)

Tate

recuperated

in

the

hospital for about ten days and was discharged on January 30.
(Id. at 54-56.)
Upon

his

discharge,

Tate

Correctional Institution (“PCI”).

was

housed

at

Piedmont

(Id. at 50; Doc. 4 at 9.)

He

was discharged from regular medical care at PCI on February 27
(Doc. 26-1 at 48) and transferred back to ACI on March 2 (Doc.
34 at 3).

On March 27, Dr. Harr “recommend[ed] [a] smoke free

area to [decrease] 5 risk of recurrent infection,” released Tate
from

his

weight-lifting

pneumococcal and flu vaccines.

restrictions,

and

recommended

(Doc. 26-1 at 44.)

On March 30,

4

A bronchoscopy is an “inspection of the interior of the
tracheobronchial tree through a bronchoscope.”
STEDMAN’S MEDICAL
DICTIONARY 214 (25th ed. 1990). A thoracotomy is “an incision into the
chest wall.”
Id. at 1594.
A decortication is a “removal of the
cortex, or external layer, . . . from any organ” or “an operation for
removal of the residual clot and/or newly organized scar tissue that
form after . . . neglected empyema.” Id. at 403. Tate was diagnosed
with empyema (Doc. 26-1 at 54), which is “pus in a body cavity,”
STEDMAN’S MEDICAL DICTIONARY 505.
5

The notation is actually an up arrow, but “decrease” is presumably
meant.

5

Dr. Hassan noted that the patient “needs smoke free facility
Rec. Cardiovas. & Pulm.”

(Doc. 31-1 at 26.)

Tate asserts that

those recommendations were followed and he was transferred back
to PCI for approximately 16 months, until July 2007.
at 2.)

(Doc. 35

According to Tate, PCI was the only smoke-free facility

in North Carolina at the time.
transferred back to ACI.

(Id.)

(Id.)

On July 10, 2007, he was

Nine days later, Dr. Hassan

again noted that Tate “needs smoke free facility per Cardiology
& Pulm. recs. in past.”

(Doc. 31-1 at 27.)

Tate alleges that, despite the doctors’ recommendations, he
remained at ACI and was exposed to secondhand tobacco smoke that
caused chest pain while he was recuperating from emergency lung
surgery.
2008 (the

(Doc. 34 at 9.)
exact

date

is

He states that until he left ACI in
not

indicated),

he

witnessed

fellow

inmates smoking in the dorms, medical staff smoking in front of
the medical building, and other staff members smoking on the
sidewalks and on the basketball court on “numerous” occasions.
(Id.)

Tate “had to pass through a cloud of smoke to go eat,”

because staff smoked “in front of Master Control” outside the
dining

facility.

presence

of

(Id.)

secondhand

Another
smoke

at

inmate
ACI

attested

during

2007

to
and

“daily”
2008

-

including on the path outside the dining facility and outside
“on the edge of the basketball court which is approximately 20

6

feet from the weight pile” - and stated that staff members,
rather than inmates, were smoking. 6
On

July

23,

2007,

(Id. at 10.) 7

Defendant

Martin

advised

Tate

that

smoking was not permitted indoors at ACI and was allowed outside
only in designated areas.

(Doc. 31-1 at 6, 30.)

She also told

him that it was his responsibility to report smoking violations
to staff if he believed the rules were being violated.
6, 30.)
medical

(Id. at

She told him it was not the responsibility of the
staff

tobacco smoke.

to

move

him

(Id. at 30.)

to

avoid

exposure

to

secondhand

According to Tate, on August 17,

2008, a nurse informed him that Martin stopped his transfer to a
smoke-free facility. 8

(Doc. 34 at 4.)

On August 22, 2007, Tate filed a grievance, complaining
about his exposure to secondhand tobacco smoke and requesting a
transfer

to

a

smoke-free

facility.

(Id.;

Doc.

31-2

at

6.)

Defendant Kelly, who was the unit manager at the time, reviewed

6

Defendants dispute these facts, asserting that ACI was entirely
smoke-free indoors as of 2006 and that smoking was limited to
designated, outdoor areas, which Tate could avoid. (Doc. 31-1 at 6-7;
Doc. 31-4 at 4.)
Defendants assert that ACI became entirely smokefree in 2009. (Doc. 31-2 at 3, 23-26.)

7

There are three additional affidavits from inmates, but one does not
relate to the relevant time period (Doc. 34 at 11 (describing
conditions at ACI until 2006)), and the other two are not notarized or
sworn (id. at 12, 13).

8

Martin disputes this assertion and denies having authority to
determine where an inmate is housed. (Doc. 31-1 at 7; Doc. 31-4 at 34.) Tate does not identify the nurse who allegedly informed him.

7

the grievance on August 30 and repeated Martin’s statement: ACI
only allows smoking in designated outdoor areas, and Tate should
report

any

violations

to

management.

(Doc.

31-2

at

6.)

Defendant Jones, who is a grievance examiner with the Inmate
Grievance

Resolution

Board

(“IGRB”),

reviewed

the

file

on

October 31, approved of the actions taken, and considered the
grievance resolved.
Tate

remained

(Id. at 5; Doc. 31-3 at 1-2).
at

ACI

until

sometime

in

mid-2008.

The

record is not clear on exactly when he left, but medical notes
show he was still at ACI on March 5, 2008 (Doc. 31-1 at 30), and
a health screening shows he had left ACI and was at Mountain
View Correctional Institution by July 8, 2008 (Doc. 31-4 at 14).
During Tate’s stay at ACI (which was 9 to 12 months) he never
filed any other grievance related to secondhand smoke.

The only

other grievance he filed related to obtaining winter clothing.
(Doc. 9 at 15-17.)

There is no record of Tate being refused any

requested medical consult or treatment relating to his lungs or
secondhand tobacco smoke.
In his subsequent visits to the medical clinic while he was
at ACI, Tate never related any symptom to, or even mentioned,
secondhand

smoke.

On

August

31,

“dropped out” while mowing the lawn.

8

2007,

Tate

collapsed

(Doc. 31-1 at 30.)

or
He

alleges that a prison officer 9 forced him to cut grass, even
though his medical restrictions prevented him from performing
that kind of work and he did not have proper boots.
8.)

(Doc. 9 at

The medical staff examined him and sent him back to housing

to rest.
grievance
(Doc.

9

(Doc. 31-1 at 30.)
against
at

9.)

the

Tate claims he did not file a

officer

Then,

on

because

March

examined him for a pulled hamstring.

feared

2008,

5,

he

the

retaliation.
medical

(Doc. 31-1 at 30.)

staff
There

is no record of any other medical visit or grievance from July
2007 to July 2008. 10
Tate filed his initial pro se complaint on August 2, 2010,
which was then struck for failure to use the correct § 1983
forms.

(Docs.

September
2010.

15,

2,

2010,

(Docs. 4, 9.)

3.)
and

He
an

filed
amended

grievances

answered,

is

asserting

corrected

complaint

complaint

on

November

1,

on

He is suing all three Defendants in their

individual and official capacities.
his

a

included
several

in

Documentation of several of

the

complaints.

defenses,

immunity and the statute of limitations.

including
(Doc. 21.)

Defendants
sovereign
After Tate

9

This officer was originally named as a Defendant in this case but was
dismissed on September 17, 2010.

10

There is no record evidence that Tate was at ACI at any time after
2008.
Although Defendants submitted documentation regarding later
medical visits and grievances at Mountain View and Columbus
Correctional Institutions (Doc. 31-4 at 3-6, 28-29, 31-36, 40), that
evidence is not relevant to Defendants’ actions or liability.

9

voiced difficulty obtaining his medical records from ACI (Doc.
23), Defendants submitted those records to the court (Doc. 261).
Defendants

have

now

issues before the court.
supporting
Defendant

affidavits
Martin

moved

summary

(Doc. 30.)

with

(Doc.

for

on

all

They have submitted four

accompanying

31-1);

judgment

Defendant

exhibits:
Kelly

those

(Doc.

of

31-2);

Finesse Couch, the Executive Director of the North Carolina IGRB
(Doc.

31-3);

and

Stephanie

Leach,

the

Risk

Manager/Standards

Director of the North Carolina Division of Adult Corrections
(Doc.

31-4).

submitted

Tate

several

opposes

affidavits

the
from

fellow inmates at ACI (Doc. 34).

motion

(Doc.

himself,

35)

his

and

has

mother,

and

The motion is now ripe for

consideration.
II.

ANALYSIS
A.

Standard of review

“The court shall grant 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.”
Civ.

P.

56(a).

The

moving

party

bears

the

Fed. R.

burden

of

establishing that no genuine dispute of material fact remains.
When the non-moving party has the burden of proof, the moving
party is entitled to summary judgment if it shows the absence of
material disputed facts.

Celotex Corp. v. Catrett, 477 U.S.
10

317, 322-23, 325 (1986).

In assessing whether a genuine dispute

of material fact sufficient to preclude summary judgment exists,
the

court

regards

the

non-movant’s

statements

as

true

and

accepts all admissible evidence and draws all inferences in the
non-movant’s favor.
242, 255 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.
But a non-moving party must establish more

than the “mere existence of a scintilla of evidence” to support
his

position.

Id.

at

252.

If

the

evidence

is

“merely

colorable, or is not significantly probative, summary judgment
may be granted.”

Id. at 249-50.

Ultimately, summary judgment

is appropriate where the non-movant fails to offer “evidence on
which the jury could reasonably find for the plaintiff.”
252.

Id. at

The court construes Tate’s pro se pleadings and motions

liberally.
B.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Official capacity claims – sovereign immunity

Defendants assert that they are immune from suit in their
official capacities under the Eleventh Amendment.
10.)

(Doc. 21 at

Tate does not directly address this argument, but as Tate

is pro se and opposes summary judgment generally, the court will
consider the merits of this defense.

See Stevenson v. City of

Seat Pleasant, __ F.3d __, No. 12-2047, 2014 WL 660919, at *4
n.3 (4th Cir. Feb. 21, 2014).
The Eleventh Amendment bars suits against states and any
state instrumentality properly characterized as an “arm of the
11

state.”
30

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-

(1997).

however.

Eleventh
To

Eleventh

Amendment

ensure

Amendment

the

immunity

enforcement

permits

suits

of

for

is

not

federal

prospective

absolute,
law,

“the

injunctive

relief against state officials acting in violation of federal
law.”

Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)

(citing Ex parte Young, 209 U.S. 123 (1908)).

Federal courts

thus may order prospective relief but cannot order retrospective
relief, such as damages, unless the state waives its immunity or
Congress abrogates the state’s immunity in exercising its powers
under the Fourteenth Amendment.
Prepaid

Postsecondary

Id.; Coll. Sav. Bank v. Fla.

Educ.

Expense

are

Bd.,

properly

527

U.S.

666,

670

(1999).
Here,
officials

Defendants
when

sued

in

their

Melo, 502 U.S. 21, 25 (1991).
and

damages

against

them.

characterized

official

as

capacities.

state

Hafer

v.

Tate seeks a declaratory judgment
(Doc.

4

at

14-16.)

Because

Defendants have not waived their immunity and Congress has not
abrogated
against

it
them

for
in

§

1983

their

actions,

official

Tate

cannot

capacities.

seek
See

damages

Kelly

v.

Maryland, 267 Fed. App’x 209, 210 (4th Cir. 2008) (citing Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)) (“It is
now well settled that a state [or state official] cannot be sued

12

under § 1983.”) 11

Tate’s request for prospective relief – either

in the form of a declaratory judgment or an injunction – fails
because he does not allege an “ongoing violation of federal law”
permitting the application of the Ex parte Young doctrine.

See

DeBauche v. Trani, 191 F.3d 499, 504-05 (4th Cir. 1999) (holding
that

Eleventh

Amendment

immunity

barred

declaratory

and

injunctive relief when no ongoing violation of federal law was
alleged).

Indeed,

it

is

unclear

what

use

injunctive

relief

would be to Tate, as his current address indicates he is no
longer housed at ACI and there is no allegation or evidence that
he is likely to be returned there.
any

event,

Tate

does

not

(See Doc. 35 at 7-8.)

challenge

that

all

North

In

Carolina

prison facilities are now smoke-free.
Because Tate seeks damages and prospective relief against
state

officials

in

their

official

capacities,

but

does

not

allege an ongoing violation of federal law, those claims are
barred by Eleventh Amendment immunity.
C.
Tate
individual

Individual capacity claims – qualified immunity
also

asserts

capacities;

claims
he

against

alleges

that

Defendants

in

their

Defendants

have

been

deliberately indifferent to his serious medical needs and thus

11

Unpublished decisions of the Fourth Circuit are not precedential but
are cited for their persuasive authority.
See Collins v. Pond Creek
Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

13

have violated his Eighth Amendment rights.

Defendants contend

that they have not violated Tate’s constitutional rights, but
even

if

liability.

they

have,

qualified

immunity

shields

them

from

(Doc. 31 at 13-17, 18-20.) 12

The doctrine of qualified immunity “balances two important
interests – the need to hold public officials accountable when
they

exercise

power

irresponsibly

and

the

need

to

shield

officials from harassment, distraction, and liability when they
perform their duties reasonably.”
223, 231 (2009).
the

official

Pearson v. Callahan, 555 U.S.

The burden of proof and persuasion rests on

asserting

qualified

immunity.

Meyers

v.

Balt.

Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013).
Qualified
liability

immunity

“unless

a

protects

plaintiff

officials

[shows]

(1)

from

that

the

personal
official

violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged
12

Defendants also asserted the statute of limitations as an
affirmative defense in their answer.
(Doc. 21 at 9.)
A three-year
statute of limitations would bar Tate’s claims that accrued prior to
August 2, 2007, which includes the diagnosis and treatment of his
pneumonia in January 2006. See Nat’l Adver. Co. v. City of Raleigh,
947 F.2d 1158, 1161-62 (4th Cir. 1991) (personal injury § 1983 actions
have three-year statute of limitations, borrowed from N.C. Gen. Stat.
§ 1-52(5)).
Although Tate attempts to avoid this result by claiming
that he continues to suffer from the events of January 2006 and is
forever disfigured by his scar (Doc. 34 at 6), “continuing ill effects
of an original violation . . . do not constitute a continuing
violation.”
A Soc’y Without A Name v. Virginia, 655 F.3d 342, 348
(4th Cir. 2011). Insofar as Defendants did not raise that defense in
their motion for summary judgment (Docs. 30, 31), the court has not
considered it for the present motion.

14

conduct.”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).

Courts have discretion as to which prong to analyze first, as
failure to satisfy either prong ends the inquiry in favor of
immunity for the official.
1.

Pearson, 555 U.S. at 236.

Violation of a constitutional right

The first question in the qualified immunity inquiry asks
whether the defendant-official violated a constitutional right
of

the

plaintiff.

“The

Constitution

does

not

mandate

comfortable prisons,” but at a minimum, prison officials “must
provide humane conditions of confinement,” including “adequate
food, clothing, shelter, and medical care.”
511

U.S.

825,

(quoting

832

Rhodes

“[D]eliberate

(1994)

v.

(internal

Chapman,

indifference

quotation

452

to

[a

U.S.

marks

337,

prisoner’s]

needs” violates the Eighth Amendment.
U.S. 97, 104 (1976).

Farmer v. Brennan,
omitted)

349

(1981)).

serious

medical

Estelle v. Gamble, 429

To succeed on his Eighth Amendment claim,

Tate must show both that his medical needs were sufficiently
serious

–

an

objective

standard

–

and

that

Defendants

were

deliberately indifferent to those needs – a subjective standard.
Farmer, 511 U.S. at 834, 837-38.
Tate’s

claims

break

down

problems:

the

failure

to

timely

pneumonia

in

January

2006;

and

15

into

two

diagnose
his

discrete

and

exposure

respond
to

medical
to

his

secondhand

tobacco smoke at ACI from July 2007 until he was transferred
away in mid-2008.

Each will be addressed separately below.

a.

Sufficiently serious medical need

“As a general proposition, a medical need may be deemed
objectively serious if it is ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.’”

Webb v. Hamidullah, 281 F. App’x 159, 165

(4th Cir. 2008) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th
Cir. 1980)).

Pneumonia that resulted in emergency surgery and

hospitalization meets this standard.
Exposure

to

“environmental
recognized

secondhand

tobacco

under

the

tobacco

smoke”

or

Estelle

smoke

“ETS”)

framework

(sometimes

has
as

a

called

frequently
serious

been

medical

injury or need, even when medical problems are not yet evident.
See Helling

v.

McKinney,

509

U.S.

25,

33-34

(1993)

(finding

deliberate indifference to a serious medical need when prison
officials allowed a prisoner to be exposed to his cellmate’s
five-pack-a-day smoking habit).

Even when the exposure is not

as severe as in Helling, courts have found a serious medical
need when the prisoner has a history of respiratory problems.
See, e.g., Tudor v. Harrison, 195 F. App’x 160, 161 (4th Cir.
2006) (affirming district court’s limited finding of deliberate
indifference

to

serious

medical
16

need

when

prison

failed

to

enforce non-smoking policy or to develop a screening process to
separate smokers from non-smokers with medical needs, such as
asthma); Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)
(affirming district court’s denial of motion to dismiss when
prisoner with severe chronic asthma was exposed to secondhand
tobacco

smoke

because

guards

failed

to

enforce

non-smoking

policy); Reilly v. Grayson, 310 F.3d 519, 521 (6th Cir. 2002)
(affirming district court’s finding of deliberate indifference
to serious medical need when prison failed to house asthmatic
prisoner in a non-smoking unit, despite medical recommendations,
which

resulted

in

prisoner’s

exposure

to

secondhand

tobacco

smoke). 13
Tate

had

undergone

emergency

lung

surgery

only

eighteen

months before he transferred back to ACI and complained about
secondhand tobacco smoke in July and August 2007.

A prison

doctor had recommended as recently as July 19, 2007, that Tate
be placed in a smoke-free facility.

(Doc. 31-1 at 27.)

For the

purposes of the present motion, the court assumes that Tate’s
history of respiratory problems and the recommendations for a
smoke-free facility establish that his medical condition, which

13

Pre-Helling decisions did not always recognize exposure to
secondhand tobacco smoke as a serious medical need.
See, e.g.,
Clemmons v. Bohannon, 956 F.2d 1523, 1526-28 (10th Cir. 1992) (en
banc).

17

would

be

aggravated

by

secondhand

smoke,

was

sufficiently

serious.
b.
“Deliberate

Deliberate indifference
indifference

is

a

very

high

showing of mere negligence will not meet it.”
195

F.3d

692,

deliberately

695

(4th

indifferent

Cir.
if

1999).

he

“knows

A
of

excessive risk to inmate health or safety.”
837.

standard

–

a

Grayson v. Peed,

prison
and

official

is

disregards

an

Farmer, 511 U.S. at

It is a subjective standard; the official must know the

facts from which an inference of serious harm could be drawn and
must actually draw the inference.

Brown v. Harris, 240 F.3d

383, 389 (4th Cir. 2001) (citing Farmer, 511 U.S. at 837).
The Fourth Circuit has explained that liability under the
deliberate indifference standard requires two showings:
First, the evidence must show that the official in
question subjectively recognized a substantial risk of
harm. It is not enough that the officers should have
recognized it; they actually must have perceived the
risk.
Second, the evidence must show that the
official in question subjectively recognized that his
actions were inappropriate in light of that risk. As
with the subjective awareness element, it is not
enough that the official should have recognized that
his actions were inappropriate; the official actually
must
have
recognized
that
his
actions
were
insufficient.
Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir.
2004) (emphasis in original) (citations and internal quotation
marks

omitted).

Of

course,

even

18

without

direct

evidence,

a

reasonable fact-finder “may conclude that a prison official knew
of a substantial risk from the very fact that the risk was
obvious.”

Farmer, 511 U.S. at 842.

When it comes to a prisoner’s medical care, mere negligence
or malpractice does not constitute deliberate indifference.

See

Johnson v. Quinones, 145 F.3d 164, 166 (4th Cir. 1998) (finding
no deliberate indifference when doctors negligently failed to
diagnose pituitary tumor, resulting in prisoner’s lost eyesight,
because prisoner did not prove that doctors subjectively knew or
inferred that prisoner’s symptoms indicated a tumor); Miltier v.
Beorn, 896 F.2d 848, 852 (4th Cir. 1990), overruled in part on
other

grounds

between

an

by

inmate

Farmer,
and

511

a

U.S.

physician

at
over

837.

“Disagreements

the

inmate’s

proper

medical care do not state a § 1983 claim unless exceptional
circumstances are alleged.”

Wright v. Collins, 766 F.2d 841,

849 (4th Cir. 1985) (inadequate medical treatment of prisoner
who was injured in a fall from a ladder, even if malpractice,
does

not

diagnoses

constitute
or

deliberate

treatment,

deliberate indifference.”
that

even

if

doctor

indifference).

without

more,

do

“[N]egligent
not

constitute

Webb, 281 F. App’x at 166 (concluding

misdiagnosed

prisoner’s

need

for

hernia

surgery, the fact that he did not disregard any risk of harm he
subjectively knew about meant prisoner failed to show deliberate
indifference).
19

Here, Tate has failed to establish that, as to the events
of January 2006, the conduct of any Defendant fell below the
standard

of

care,

indifference.

much

less

that

it

constituted

deliberate

Kelly and Jones were not present at ACI during

the January 2006 conduct and there is no evidence they were
otherwise involved in or aware of it.
3

at

1-2.)

involved

in

Tate
any

does

not

treatment

allege

(Doc. 31-2 at 2; Doc. 31that

(rather,

the

Martin

was

directly

unchallenged

evidence

reveals that Nurse Hinson saw Tate on January 14 and 15, and
Nurse Blackwelder saw him on January 16).

(Doc. 26-1 at 33-35.)

Martin is a “Nurse Supervisor II,” which includes responsibility
for coordinating and directing all health services within ACI.
(Doc. 31-1 at 1.)

Thus, she would have potential liability as a

supervisory employee.

However, to succeed on that claim, Tate

would have to “show actual or constructive knowledge of a risk
of constitutional injury, deliberate indifference to that risk,
and an affirmative causal link between the supervisor’s inaction
and

the

particular

plaintiff.”
(quoting
(internal

constitutional

injury

suffered

by

the

Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999)

Shaw

v.

Stroud,

quotation

13

marks

F.3d

791,

omitted).

799

(4th

Moreover,

Cir.
“the

1994))
conduct

engaged in by the supervisor’s subordinates must be ‘pervasive,’
meaning that the ‘conduct is widespread, or at least has been
used

on

several

different

occasions.’”
20

Randall

v.

Prince

George’s Cnty., Md., 302 F.3d 188, 206 (4th Cir. 2002) (quoting
Shaw, 13 F.3d at 799).
Dr. Hassan first examined Tate a day after he had been
lifting weights and believed that the reported chest pain was
musculoskeletal
(Doc.

26-1

at

and
35,

caused
43,

by

46.)

a

muscle

All

of

strain

Tate’s

of

some

vital

signs

symptoms appeared normal; he did not even have a cough.
35.)

Dr.

approach.

Hassan

prescribed

medication

and

a

kind.
and

(Id. at

conservative

After that, ACI medical personnel examined Tate each

time he asked for medical attention.

Again, other than the

chest pain, which was thought to be caused by a strained muscle,
Tate appeared normal and healthy, and his lungs were clear.

His

behavior and presentation were inconsistent with his reported
symptoms; although he told medical staff he could not breathe,
Tate was talking “continually” and “yelling at staff,” and he
was not in any acute respiratory distress.
nurses

also

dispensed

medication.

(Id. at 33-35.)

(Id.)

Once

Dr.

The

Hassan

returned after the weekend, he saw Tate and ordered an X-ray.
In the end, any delay in the diagnosis of Tate’s lung condition
and

the

resulting

hospitalization

are

unfortunate,

but

the

evidence does not meet the threshold of demonstrating deliberate
indifference by anyone else at ACI, including any supervisory
liability by Martin.

21

Tate

has

also

failed

to

establish

that

Defendants

were

deliberately indifferent to any health effect from exposure to
secondhand tobacco smoke at ACI during the relevant time period
- from July 2007 to mid-2008.

Defendants have established that

ACI was designated an indoor smoke-free facility during this
time,

as

required

by

state

law

and,

as

a

policy

restricted smoking to designated areas outdoors.
4

(law

requiring

prisons

to

be

smoke-free

matter,

(Doc. 31-4 at

indoors

passed

in

2005, became effective on January 1, 2006).)
Tate

contends

that,

as

a

practical

matter,

ACI

was

not

smoke-free and he could not avoid being exposed to secondhand
smoke.

To be sure, Defendants do not contend that ACI was

smoke-free outdoors, nor is that the issue.

The question is

whether Tate was exposed involuntarily to dangerous levels of
secondhand tobacco smoke and, if so, whether Defendants were
deliberately indifferent to his exposure and health.
Tate’s own affidavit fails to establish how often smoking
occurred in each place he reports, whether any of the outdoor
smoking

violated

the

ACI

smoking

policy,

or

Defendant knew of any smoking occurring at ACI.

whether

His affidavit

states, in its entirety:
From
2004
to
2008
I
was
housed
at
Albemarle
Correctional Institution (ACI), (ecept [sic] the times
I
was
in
the
hospital/Piedmont
Correctional
Institution (PCI) Infirmary) . . . where I was
involuntarly [sic] exposed to environmental tobacco
22

any

smoke (ETS)/secondhand smoke, which caused chest and
back pain (a lot of discomfort) while recouperating
[sic] from emergency lung surgery.
I witnesed [sic]
inmates smoking in the dorms (by bunks & bathrooms) .
. .
medical staff smoking in front of the medical
building . . .
custody (C.O’s, SGT’s, Lt.’s, unit
managers, secretaries, case managers) smoking on the
sidewalk in front of Master Control, and on the
basketball court on Tillery unit.
I witnessed these
things happen on numerous ocassions [sic] especially
in front of Master Control, because on the way to the
kitchen I had to pass through a cloud of smoke to go
eat.
(Doc. 34 at 9 (no alterations).)

Tate bears the burden of

producing sufficient evidence for a reasonable fact-finder to
conclude
But,

that

except

dorms,

his

consistent
smoking,
smoking

his

for

his

claim

testimony
with

ACI’s

moreover,
he

constitutional

Tate

encountered

about

rights

unspecified

describes
smoking
claims
on

the

have

outdoor

policy.

been

smoking

smoking
As

to

the

involuntary

exposure

way

kitchen.

to

violated.

the

in

the

that

is

outdoor
only

to

Inmate

Kenneth Spellman is more specific as how often smoking occurred,
stating that he saw smoking “on a daily basis,” sometimes “two
or three times a day,” (id. at 10), but he does not provide
evidence as to whether any of the outdoor smoking violated the
ACI smoking policy, whether it could not be avoided by Tate, or
whether any Defendant knew of any smoking occurring at ACI. 14
14

Spellman’s evidence also contradicts Tate’s.
While Tate reports
inmates smoking inside the prison, inmate Spellman’s affidavit, which
Tate offers, specifically states that “the exposure [to secondhand
smoke] was not from fellow inmates.”
(Id. at 10.)
For purposes of

23

Viewing the evidence in the light most favorable to Tate,
the court accepts that it is sufficient to establish that Tate
encountered
evidence

some

that

exposure.

Martin,

That

Kelly,

or

said,
Jones

Tate
knew

has

produced

no

that

smoking

was

occurring outside of designated areas or that Tate was unable to
avoid exposure to secondhand tobacco smoke.

In addition, Kelly

never spoke to Tate personally, and Tate never reported to him
that inmates were smoking in violation of the policy.
2 at 2.)

(Doc. 31-

To constitute deliberate indifference, “[i]t is not

enough that the officers should have recognized [the risk]; they
actually must have perceived the risk.”
303 (emphasis in original).

Parrish, 372 F.3d at

Martin states that ACI’s smoking

policy allowed Tate to avoid exposure to secondhand smoke, and
Tate

does

not

contest

that

he

smoking violation to staff.
Tate’s

initial

evidence

that

tobacco

smoke

complaint
he
or

ever

in

was

an

regarding respiratory problems.

to

(Doc. 31-1 at 6-7.)
July/August

complained

sought

instructed

to

ACI

appointment

2007,

any

Yet, after
there

medical
with

report

is

no

staff

about

medical

staff

He did visit the medical clinic

for other problems, including a pulled hamstring (id. at 30),
but he never complained about chest pain, trouble breathing, or
any other symptom possibly related to secondhand tobacco smoke
the pending motion, the court views all evidence in the light most
favorable to Tate.

24

exposure.

He

also

secondhand

smoke.

sufficient

evidence

never
So,

filed

even

that

another

assuming

he

was

grievance

that

exposed

Tate

related
has

to

adduced

involuntarily

to

secondhand smoke (which is questionable), his lack of evidence
of any other report of respiratory difficulty from August 2007
to mid-2008, combined with the prison’s grievance procedure to
address any violations of the smoke-free policy, defeats Tate’s
claim that any Defendant was deliberately indifferent to any
serious medical need caused by exposure to secondhand tobacco
smoke.
2.

Violation of a “clearly established” right

Because the court finds that Tate has not established a
violation
reach

of

the

established.
D.

his

constitutional

question

of

whether

rights,
those

there
rights

is

no

were

need

to

clearly

Pearson, 555 U.S. at 236.

Claims based on acts by non-Defendants

In his complaint, Tate alleges wrongdoing by several people
who are not named as Defendants in this suit, including being
delayed getting to the Charlotte hospital (Doc. 9 at 6-7) and
being forced to cut grass (id. at 8-9).

Because none of these

incidents involves any alleged wrongdoing by Martin, Kelly, or
Jones, any claims related to those incidents are dismissed.

25

III. CONCLUSION
For

the

reasons

stated,

the

court

finds

that

sovereign

immunity bars Tate’s claims against Defendants in their official
capacities.

The court also finds that there is insufficient

evidence from which a fact-finder could reasonably conclude that
Tate’s

constitutional

rights

were

violated,

which

entitles

Defendants to summary judgment as to Tate’s claims against them
in their individual capacities.
IT IS THEREFORE ORDERED that Defendants’ motion for summary
judgment (Doc. 30) is GRANTED and that this action is DISMISSED
WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
March 20, 2014

26