The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.
Donald Washington, Jr., a state prisoner incarcerated at Salinas Valley State Prison ("SVSP"), filed a pro se civil rights action for damages, declaratory judgment, and injunctive relief under 42 U.S.C. § 1983 alleging that prison officials, acting with deliberate indifference, exposed him to high levels of environmental smoke when they housed him in the same cell as an inmate who smokes 20 cigarettes a day.
In its April 18, 2002 Order, the Court found that when liberally construed, plaintiff's allegations that Warden A. Lamarque personally approved a prison policy of double celling nonsmokers with smokers stated a cognizable Eighth Amendment claim for relief under § 1983. The Court dismissed California Governor Gray Davis, former Director of Corrections Cal Terhune and the Brown & Williamson Tobacco Corporation, and ordered the United States Marshal to serve the remaining defendant, Warden Lamarque. Defendant Lamarque ("defendant") now moves for summary judgment on the grounds that plaintiff failed to state a claim for relief under 42 U.S.C. § 1983, there are no genuine issues of material facts in dispute, and he is entitled to the defense of qualified immunity and to judgment as a matter of law.
Plaintiff was transferred to SVSP from Pelican Bay State Prison on May 9, 2000. In his complaint, plaintiff, a non-smoker, alleges that he suffers from health ailments as a result of his exposure to high levels of environmental tobacco smoke ("ETS")*fn1 at SVSP. Plaintiff alleges that defendant violated his Eighth Amendment rights by housing plaintiff in a cell with a smoker. Plaintiff's former cellmate, Frank Owens, admittedly smokes 20 cigarettes per day. Plaintiff was moved out of the cell shared with Mr. Owens on August 8, 2002; however, the record does not indicate the length of time plaintiff actually shared a cell with Mr. Owens.
Plaintiff alleges that defendant personally approved of the prison policy that allows housing of non-smoking inmates with smoking inmates. Plaintiff alleges that defendant knew of the specific threat to plaintiff of breathing secondhand hand smoke and that he knew or reasonably should have known of the damage it could cause to plaintiff's health.
Defendant contends that plaintiff failed to provide evidence that his Eighth Amendment rights were violated and, in any case, he is entitled to the defense of qualified immunity.
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the nonmoving party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the nonmoving party fails to make this showing, "the moving party ...