Spellman v. Beard et al
Filing
85
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LONNIE SPELLMAN,
Plaintiff
vs.
JEFFREY BEARD, et al.,
Defendants
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4:10-cv-2334
Hon. John E. Jones III
MEMORANDUM
April 4, 2017
Plaintiff Lonnie Spellman (“Spellman” or “Plaintiff”), a Pennsylvania state
inmate, incarcerated at the State Correctional Institution, Frackville, (“SCIFrackville”), Pennsylvania, commenced this civil rights action on December 3,
2010. The named Defendants are the former Department of Corrections Secretary
Jeffrey Beard and the following SCI-Frackville employees: Deputy Superintendent
Robert Collins; Superintendent Michael Wenerowicz; Unit Manager George
Evans; Grievance Officer Peter Damiter; Assistant Coordinators Joseph
Lukashewski and Victor Mirarchi; Unit Manager Joanne Miranda; Major Michael
Lorady; Correctional Officers Michael Throway, Ralph Johnson, and Kenneth
Stutzman; the entire medical department; Thomas Derfler; and Anthony
Kovalchik. Plaintiff complains that he is a non-smoker and that he would prefer
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not to share his cell with someone who smokes. (Doc. 1). On March 14, 2011,
Plaintiff filed an amended complaint. (Doc. 13).
By Memorandum and Order dated October 30, 2015, all Defendants and
claims were dismissed, except for Defendants Johnson and Evans, and Plaintiff’s
Eighth Amendment claim based on Environmental Tobacco Smoke (“ETS”). Doc.
59). Presently pending is a motion filed by Defendants Johnson and Evans,
seeking summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc.
73). For the reasons set forth below, Defendants’ motion for summary judgment
will be granted.
I.
STANDARD OF REVIEW
Summary judgment “should be rendered 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.” FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340
(3d Cir. 1990). “[T]his standard provides that 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)
(emphasis in original); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990).
A disputed fact is “material” if proof of its existence or nonexistence would affect
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the outcome of the case under applicable substantive law. Id.; 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
Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d
Cir. 1991).
The party moving for summary judgment bears the burden of showing the
absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d
Cir. 1996). Once such a showing has been made, the non-moving party must go
beyond the pleadings with affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give rise to a genuine
issue. FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party “must
do more than simply show that there is some metaphysical doubt as to the material
facts”); Wooler v. Citizens Bank, 274 F. App’x 177, 179 (3d Cir. 2008). The party
opposing the motion must produce evidence to show the existence of every
element essential to its case, which it bears the burden of proving at trial, because
“a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex. at 323; see
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also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he non-moving
party ‘may not rely merely on allegations or denials in its own pleadings; rather, its
response must . . . set out specific facts showing a genuine issue for trial.’” Picozzi
v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011) (quoting FED. R. CIV. P.
56(e)(2)). “Inferences should be drawn in the light most favorable to the nonmoving party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v.
BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
II.
STATEMENT OF MATERIAL FACTS 1
Plaintiff was transferred from SCI-Graterford to SCI-Frackville, where he
arrived on or about March 22, 2010. (Doc. 1, p. 3). Upon his arrival, Spellman
notified the reception committee that he is “not a problem providing [he] was not
celled with a smoker.” Id. Plaintiff was told that SCI-Frackville is a non-smoking
facility. Id. The Department of Corrections (“DOC”) has a policy prohibiting
smoking inside its buildings. (Doc. 77-4 at 2). Inmates who smoke in their cells
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Error! Main Document Only.Middle District of Pennsylvania Local Rules of Court provide
that in addition to filing a brief in response to the moving party’s brief in support, “[t]he papers
opposing a motion for summary judgment shall include a separate, short and concise statement
of material facts responding to the numbered paragraphs set forth in the statement [of material
facts filed by the moving party] ..., as to which it is contended that there exists a genuine issue to
be tried.” See M.D. Pa. LR 56. 1. The rule further states that the statement of material facts
required to be served by the moving party will be deemed to be admitted unless controverted by
the statement required to be served by the opposing party. See id. Because Plaintiff has failed to
file a separate statement of material facts controverting the statement filed by Defendants, all
material facts set forth in Defendants’ statement (Doc. 76) will be deemed admitted.
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are reprimanded or disciplined when their identity is disclosed. (Doc. 77-2 at 9)
(See also Doc. 82, Inmate Misconducts).
Plaintiff’s medical intake screening on March 22, 2010, revealed no
allergies, physical disabilities or limitations or chronic medical conditions. (Doc.
77-6 at 7). Plaintiff’s only complaint of a current condition was of shortness of
breath “since December – mostly with walking far distances to dining hall.” Id.
Plaintiff was taking Prozac and Trazodone for depression. Id.
On March 24, 2010, Plaintiff was seen by the medical department for chest
pain. (Doc. 77-6 at 8). The medical department scheduled him for an
electrocardiogram (“EKG”) and blood work. Id. The EKG and lab work were
completed on March 31, 2010. Id. Plaintiff was diagnosed with gastroesophageal
reflux disease (“GERD”). Id. His blood work was negative for the human
immunodeficiency virus (“HIV”), but did reveal a low white blood count. Id.
When asked about the low white blood count, Plaintiff responded that he “always
has low WBC’s” and that he was “told [he has] sickle cell trait.” Id.
From March 25, 2010 to April 5, 2010, Plaintiff was housed in B building, A
Block, cell 1004. (Doc. 77-3 at 2). Plaintiff was celled with an inmate who
smoked in the cell. (Doc. 1 at 5). On March 22, 2010, Plaintiff complained to CO
Johnson and Unit Manager Evans. Id. On April 5, 2010, Plaintiff was moved to
another cell and told to find a non-smoker cellmate by Unit Manager Evans. Id.
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From April 5, 2010 to April 21, 2010, Plaintiff was housed in B Building, A
block, cell 1005. (Doc. 77-3 at 2). On April 17, 2010, Plaintiff filed a grievance
regarding being celled with a smoker. (Doc. 77-4 at 2). The cellmate denied
smoking in the cell. Id. Unit Manager Evans moved Plaintiff to another cell to
avoid conflict. Id.
From April 21, 2010 to September 15, 2010, Plaintiff was housed in B
Building, C block, cell 2049. (Doc. 77-3 at 2). On July 1, 2010, Plaintiff filed a
grievance regarding being celled with a smoker. (Doc. 77-4 at 4). The cellmate
denied smoking in the cell. Id.
On July 6, 2010, Plaintiff was seen by the medical department for
complaints of “epigastric pain that radiates up center of chest.” (Doc. 77-6 at 9).
He stated that he had been “off Zantac” for approximately six weeks. Id. The
medical department assessed his condition as GERD, and increased his medication
for acid reflux. Id.
On August 3, 2010, Ventilation/Light/Sound/Temperature Testing was
conducted on Housing Units B and C. (Doc. 82-3 at 2).
From September 15, 2010 to November 16, 2012, Plaintiff was housed in B
Building, C block, cell 1007. (Doc. 77-3 at 2).
On December 3, 2010, Plaintiff filed the instant action and an amended
complaint on March 14, 2011, in which he claims that Defendants have “directly or
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peripherally endangered his health and well-being by celling him with inmates who
smoked cigarettes in the cell; either in his presence and when Plaintiff was not in
the cell.” (Docs. 1, 11).
On August 10, 2011, Ventilation/Light/Sound/Temperature Testing was
conducted on Housing Units A and B. (Doc. 82-3 at 3).
Plaintiff’s medical record reveals that Plaintiff was seen by the medical
department approximately seventeen times between March 22, 2010 and June 17,
2016. (Doc. 77-6 at 1-30). Within that time frame, there is one complaint, on
December 30, 2015, in which Plaintiff was seen by the medical department,
complaining of a “smoking cellie”. (Doc. 77-6 at 28). Plaintiff noted that he has a
“history of asthma,” however; he was “on no meds for asthma” and reported “no
recent attacks or illness.” Id. Plaintiff reported that he “was told by unit manager
is he wants a cellie who doesn’t smoke to come to medical.” Id. Medical reported
that “at this time there will be no change to restrictions since the facility is smoke
free in the housing units” and “explained he needs to address with security.” Id.
There are no other complaints in Plaintiff’s medical record of sinus problems,
infections, allergies, asthma or any other illness or diseases associated or cause by
second hand smoke. (Doc. 77-6 at 1-30).
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III.
DISCUSSION
Plaintiff invokes the Eighth Amendment’s proscription against the
imposition of cruel and unusual punishment. The Eighth Amendment “requires that
inmates be furnished with the basic human needs, one of which is ‘reasonable
safety.’ “ Helling v. McKinney, 509 U.S. 25, 33 (1993) (quoting DeShaney v.
Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200 (1989)). “Liability
based on exposure to ETS requires proof of (1) exposure to unreasonably high
levels of ETS contrary to contemporary standards of decency; and (2) deliberate
indifference by the authorities to the exposure to ETS.” [Demetrius] Brown v. U.S.
Justice Dep’t, 271 F. App’x 142, 144 (3d Cir.2008) (citing Helling, 509 U.S. at
35). The Supreme Court has observed that the adoption by a prison of an antismoking policy “will bear heavily on the inquiry into deliberate indifference.”
Helling, 509 U.S. at 36.
The United States Court of Appeals for the Third Circuit has explained that
ETS claims come in two varieties, present injury and future injury. With respect to
future injury, Helling sets forth the following two-part inquiry for ETS claims:
The Court explained that the 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.” Id. at 35, 509 U.S. 25, 113 S.Ct. 2475,
125 L.Ed.2d 22. With respect to the objective factor, the Court noted that
beyond a scientific and statistical inquiry into the seriousness of the potential
harm and the likelihood that such injury to health will actually be caused by
exposure to ETS, the Eighth Amendment requires “a court to assess whether
society considers the risk that the prisoner complains of to be so grave that it
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violates contemporary standards of decency to expose anyone unwillingly to
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 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, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994).
Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir.2003). A present injury claim based
on exposure to ETS requires proof of: 1) a sufficiently serious medical need related
to ETS exposure; and 2) deliberate indifference by the prison authorities to that
need. Id. at 266 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
Thus, both present and future injury claims require an objective component,
either that the prisoner be subjected to an unreasonably high level of ETS or that
the prisoner suffer from a sufficiently serious medical need; and both require as a
subjective component that the prison authorities be deliberately indifferent.
Defendants argue that Plaintiffs cannot satisfy either prong. The Court agrees.
Initially, the Court notes that there is no record evidence that Plaintiff suffers
from any type of medical need or illness related to ETS exposure. In fact, the
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record shows that prior to filing the instant action, Plaintiff never sought medical
treatment due to ETS exposure. On December 30, 2015, five years subsequent to
the filing of the above captioned action, Plaintiff complained that his cellmate’s
smoking was having an impact on his asthma, but the medical record revealed that
Plaintiff did not have a history of asthma, was not taking any asthma medications,
nor had he had a recent asthmatic event. Thus, Plaintiff fails to meet the objective
element of either a present or future injury claim, as he has failed to link any
symptom to ETS exposure. See Abhouran v. United States, 389 F. App’x 179,
183–84 (3d Cir.2010) (prisoner presented no evidence that smoke came through
ventilation system); Goode v. Nash, 2007 WL 201007 (M.D. Pa. Jan.23, 2007)
(despite opportunity to develop a record, the plaintiff relied on only his only
speculations that ETS exposure resulted in his nasal discomfort, coughing and
other maladies), aff'd, 241 F. App’x 868 (3d Cir.2007); [Abdul] Brown v. Varner,
2013 WL 4591817, at *18–19 (M.D. Pa. Aug.28, 2013) (when prisoner filed
grievances of ETS but did not have any injuries and was informed that the prison
had a no-smoking policy that was enforced, his claims failed); Keyes v.
Chamberlin, 2011 WL 113445, at *5 (W.D. Pa. Jan.13, 2011) (Lenihan, M.J.)
(when prisoner claimed ETS exposure at SCI–Graterford but prison proffered
evidence of a no-smoking policy that was enforced, his claims failed); Belland v.
Matachiski, 2009 WL 1585811, at *5–6 (M.D. Pa. June 3, 2009) (inmate with
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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); Buchanan v. United States, 2007 WL
983312, at *8 (M.D. Pa. Mar.27, 2007) (no evidence other than prisoner's own
speculation that ETS exposure caused his eye irritation, nausea, headaches and
breathing problems); Meo v. Wall, 2003 WL 22358649, at *3–4 (D.R.I. Sep.11,
2003) (plaintiffs failed to demonstrate that the ETS that they were exposed to
caused them to suffer “serious” current health problems where they had no
reported medical condition which could have been aggravated by ETS, but rather
shortness of breath, wheezing, tearing of eyes and pains in the chest).
Additionally, Plaintiff has failed to prove that prison officials were
deliberately indifferent to a serious risk of harm. The record demonstrates that the
DOC has a policy prohibiting smoking inside its buildings. Plaintiff was told SCIFrackville is a non-smoking facility, which reprimands or disciplines inmates who
smoke in their cell, when their identity is disclosed. When Plaintiff did complain
about being celled with a smoker, he was moved. Finally, the record reflects that
the DOC staff test ventilation to insure adequate airflow. Thus, given the
responsiveness displayed by prison officials and their adherence to the DOC nosmoking policy, Plaintiff’s ETS claim fails. See Slaughter v. Rogers, 408 Fed.
Appx. 510 (3d Cir. 2010) (Summary judgment affirmed where Defendants showed
evidence of a smoking policy, citations for violations of the policy and
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acknowledging receipt and consideration of Slaughter’s complaints); Panton v.
Nash, 317 Fed. Appx. 257 (3d Cir. 2009) (holding that a prison official cannot be
deliberately indifferent to a serious medical need is there is insufficient
documentation to put the official on notice of that need); Brown v. Varner, No.
3:11-cv-1258, 2013 WL 4591817, at *15 (M.D. Pa. Aug. 28, 2013) (finding
Defendants entitled to summary judgment in an ETS case for three reasons: First,
Brown does not identify any personally culpable defendants. Second, Brown does
not present proof of any present injury as a result of ETS exposure. Third, Brown
does not show deliberate indifference to his needs given the responsiveness
displayed by prison officials, and their adherence to the Department of Corrections
no-smoking policies).
IV.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment on
Plaintiff’s Eighth Amendment ETS claim will be granted. A separate order will
enter.
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