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United States District Court, Northern District of California

March 31, 2003


The opinion of the court was delivered by: Charles R. Breyer, United States District Judge.


(Docs. #22 & 30)

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.


I. Standard of Review

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 is entitled to a judgment as a matter of law." Celotex Corp., 477 U.S. at 323.

II. Eighth Amendment Analysis

The Eighth Amendment prohibits the infliction of cruel and unusual punishments on those convicted of crimes. See Wilson v. Seiter, 501 U.S. 294, 296-97 (1991). The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 509 U.S. 25, 31 (1993). Although the Constitution "does not mandate comfortable prisons," the Eighth Amendment imposes duties on prison officials to provide humane conditions of confinement; "prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must `take reasonable measures to guarantee the safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

A prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement "only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. In order to prove an Eighth Amendment violation, plaintiff must satisfy a two-prong test that includes an objective and a subjective element. See Helling, 509 U.S. at 35. He must, at a minimum, demonstrate that: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official subjectively has a sufficiently culpable state of mind. See Wilson, 501 U.S. at 297-98; Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1049 (9th Cir. 2002).

A. Objective Element

Housing a prisoner in an environment that exposes him to levels of ETS that pose an unreasonable risk of harm to his health is considered cruel and unusual punishment. McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). In order to prove this objective factor, plaintiff "must show that he himself is being exposed to unreasonably high levels of ETS," and that "it is contrary to current standards of decency for anyone to be so exposed against his will." Helling, 509 U.S. at 35. The determination of whether the conditions of confinement violate the Eighth Amendment requires:

more than a scientific and statistical inquiry into the seriousness of the harm the that injury health actually potential and likelihood such injury to health will be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. 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. at 36 (emphasis in original).

Defendant contends that plaintiff cannot demonstrate that he was exposed to unreasonably high levels of ETS because State law and Department of Corrections and SVSP policies prohibit inmates from smoking anywhere in the prison other than in the prison yard. See, e.g., 15 Cal. Code Regs. § 3188. According to defendant, it is "very unlikely" that plaintiff was exposed to high levels of ETS because in addition to the non-smoking policy, defendant prohibits inmates from possessing matches and cigarette lighters. Violators are disciplined and the contraband is confiscated. Moreover, plaintiff is no longer the cellmate of Mr. Owens, the twenty-pack-a-day smoker.

Plaintiff alleges that he suffers from health ailments as a result of his involuntary exposure to ETS. Plaintiff does not dispute that the non-smoking policies exist or that must also draw the inference." Farmer, 511 U.S. at 837. However, if there is a known substantial risk of serious harm to inmates in general, it is not necessary for plaintiff to show that the official knew that plaintiff himself was likely to be harmed. Id. at 843.

Plaintiff's burden here is to demonstrate that defendant knew before he housed a smoker with a non-smoker that the smoker would violate the non-smoking policy and would smoke a sufficient number of cigarettes in the cell as to expose the cellmate to unreasonably high levels of ETS. Plaintiff failed to meet his burden.

Plaintiff attacks defendant's policy of housing smokers with non-smokers without any support. He fails to offer any evidence demonstrating that defendant knew that Mr. Owens, or any other smoker, would violate the non-smoking policy and smoke in the cell. See Farmer, 511 U.S. at 837-38 (an act or omission unaccompanied by knowledge of a significant risk is insufficient). Even if defendant should have known that Mr. Owens and other inmates were smoking in their cells, "an official's failure to alleviate a significant risk that he should have perceived but did not" is not a violation of the Eighth Amendment. Id. at 838. Assuming that defendant knew that inmates were smoking in their cells, there is no evidence that he knew they would smoke a significant number of cigarettes in the cell to constitute an unreasonably high level of ETS. Id. at 844 (prison official who knows facts indicating a sufficiently substantial danger but believes, even if unsoundly, that the risk was insubstantial or nonexistent does not have requisite knowledge). And, even if defendant knew that housing smokers with non-smokers exposed the non-smokers to ETS, he is not liable under the Eighth Amendment if he responded reasonably to the risk, even if the harm was not ultimately averted. Id. at 844-45.

The undisputed evidence shows that defendant implemented a prison policy prohibiting smoking in cells in addition to adopting similar State and Department of Corrections' regulations. See Helling, 509 U.S. at 36 (adoption of a smoking policy bears heavily on the inquiry into deliberate indifference). Defendant also implemented a policy that bans matches and lighters and confiscates them if found in an inmate's possession. Centralized lighters were installed in the prison yard to support this policy. In the event an inmate smokes in the cell, the inmate is subject to discipline, which may result in loss of credits and privileges. In addition, prison policy allows inmates to request a change in cellmates. Indeed, six weeks after plaintiff filed an inmate appeal regarding his exposure to ETS while housed with Mr. Owens, he was moved out of the cell.*fn2 In sum, the undisputed evidence shows that defendant took reasonable measures to avert the risk of ETS exposure in prison cells. See Farmer, 511 U.S. at 844-45.

Because plaintiff failed to set forth specific facts demonstrating that there is a genuine issue for trial as to the subjective element of his Eighth Amendment claim, defendant is entitled to judgment as a matter of law. See Celotex Corp., 477 U.S. at 323.*fn3


Plaintiff appears to seek an injunction requiring defendant to change the prison's housing policy so that non-smokers are not housed with smokers. A district court must use caution when granting injunctive relief and may allow prison officials "time to rectify the situation before issuing an injunction." Farmer, 511 U.S. at 846-47. Injunctive relief may be granted if the Court finds the Eighth Amendment's subjective and objective requirements satisfied. Id. at 846. To survive summary judgment, plaintiff "must come forward with evidence from which it can be inferred that the defendant-officials were at the time suit was filed, and are at the time of summary judgment, knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so." Id. Plaintiff has not done so.

In addition, to the extent plaintiff seeks injunctive relief as to his housing with Mr. Owens, the claim is moot because plaintiff is no longer housed with Mr. Owens. And, to the extent plaintiff seeks injunctive relief as to his housing with his current cellmate, the claim is premature and dismissed without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (dismissal required under 42 U.S.C. § 1997e(a) when plaintiff in prison conditions case did not exhaust administrative remedies prior to filing suit).

If plaintiff is not compatible with his current cellmate, he must first follow prison grievance procedures and request a change of cellmates. See 42 U.S.C. § 1997e(a) (requiring prisoners in § 1983 actions relating to prison conditions to exhaust all administrative remedies as are available before filing suit); see also Farmer at 847 (when an inmate seeks injunctive relief and needlessly bypasses prison procedures, a court may properly compel the inmate to pursue those internal procedures). After all, when plaintiff previously filed an inmate grievance with prison officials based on his exposure to ETS caused by his former cellmate, Mr. Owens, he was moved to a new cell in six weeks. Regardless, plaintiff must exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a) before he can proceed with any claims regarding his current cellmate. See McKinney, 311 F.3d at 1199 (§ 1997e(a) requires exhaustion before filing suit).


For the foregoing reasons, defendant's motion for summary judgment (Doc #22) is GRANTED. The clerk shall enter judgment in favor of defendant and terminate all pending motions (see, e.g., Doc #30) as moot.


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