Edward Lee Clemmons v. Dale Bohannon, Robert Tansy, Herb Maschner, and Robert Mills

956 F.2d 1523, 1992 U.S. App. LEXIS 1984, 1992 WL 25604

Opinions

ON PETITION FOR REHEARING EN BANC

TACHA, Circuit Judge.

This appeal arises from a suit brought by pro se plaintiff Edward Clemmons. Clem-mons, a nonsmoking inmate at the Kansas State Penitentiary in Lansing, Kansas, sued officials of the Kansas Department of Correction under 42 U.S.C. § 1983, alleging violations of the Eighth and Fourteenth Amendments arising out of his involuntary subjection to environmental tobacco smoke (ETS). Clemmons contends that his subjection to smoking cellmates in a shared cell has led to significant involuntary exposure to ETS and that this exposure amounts to deliberate indifference to his health in violation of the Eighth Amendment, and of his Fourteenth Amendment right to substantive due process.

The district court granted summary judgment in favor of the officials of the Kansas Department of Corrections. A three-member panel of this court reversed the district court in Clemmons v. Bohannon, 918 F.2d 858 (10th Cir.1990) [Clem-mons /]. We now vacate our decision in Clemmons I and affirm the district court.

In spite of our concern that exposure to ETS is a potential health hazard, we cannot agree that exposure to ETS rises to the level of an Eighth Amendment violation in this case because the record reveals absolutely no evidence that Clemmons’s health has been adversely affected by the cigarette smoke produced by his cellmate. Further, Clemmons has utterly failed to demonstrate a factual dispute regarding the defendants’ deliberate indifference to serious medical needs. Therefore, we conclude that Clemmons has failed to satisfy Rule 56 of the Federal Rules of Civil Procedure in opposing the defendants’ motion for summary judgment.

I.

We review summary judgment orders de novo, using the same standards the district court applies. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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); see Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining whether there is an issue of material fact, we view all facts and draw all inferences from the facts in favor of the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

To oppose a motion for summary judgment, a nonmoving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The rule requires the nonmoving party “to come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 587, 106 S.Ct. at 1356 (quoting Rule 56(e) and adding emphasis). A genuine issue exists when the nonmoving party presents sufficient evidence for a jury to return a verdict in his favor. First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968).

II.

The Eighth Amendment, applicable to the states by virtue of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 662, 82 S.Ct. 1417, 1418, 8 L.Ed.2d 758 (1962), prohibits the infliction of “cruel and unusual punishment” on individuals convicted of crimes. The phrase “cruel and unusual punishment” today prohibits punishment that, “although not physically barbarous, ‘involves the unnecessary and wanton infliction of pain.’ ” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). The Supreme Court, in Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976), “conclude[d] that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ ... proscribed by the Eighth Amendment.”

In Wilson v. Seiter, — U.S. -, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991), the Supreme Court recently reaffirmed that a prisoner claiming that his conditions of confinement constitute unnecessary and wanton infliction of pain must show “deliberate indifference” to “serious medical needs.” Thus, the inquiry regarding an alleged Eighth Amendment violation contains two parts: an objective component asking whether the deprivation was sufficiently serious and a subjective component asking whether the officials acted with a sufficiently culpable state of mind. Id. 111 S.Ct. at 2324.

Moreover, allegations of “inadvertent failure to provide adequate medical care” or “negligent diagnosis,” the Court explained in Wilson, do not establish an Eighth Amendment violation because an intent requirement is implicit in the word “punishment.” Id. 111 S.Ct. at 2325, 2328. Thus, to survive the summary judgment motion and proceed to trial, Clemmons must present specific facts that would allow a reasonable fact finder to conclude that he had a serious medical need and that the defendants were deliberately indifferent to that need.

III.

Turning to the first issue — a serious medical need — Clemmons submitted his own affidavit and affidavits of Daryl Brown, Louis Conger, Carl Johnson, Fredrick Cameron, Thurman Mitchell, Christopher Union, Howard Taylor, Samuel Arnold, Darryl Noloms, Rodney Sanders, and Michael Colbert. Clemmons’s affidavit states he has been “exposed to inhaling carcinogens from the tobacco of inmates who smoke in my immediate breathing space at Kansas State Penitentiary.” The other affidavits, except for those of Cameron and Sanders, establish that the affiants were celled with Clemmons sometime between January 1986 and May 1987 and are smokers or smoked during the time they celled with him. Cameron’s affidavit states that he was a nonsmoker when he celled with Clemmons in January 1987. Sanders’s affidavit states that he is a nonsmoker who requested a nonsmoking cell and was moved into Clemmons’s cell sometime prior to November 1987.

Clemmons’s signed and sworn complaint asserts that he is a nonsmoker and that he “continue[s] to suffer the affects [sic] [of] hazardous tobacco smoke ... exhaled by other inmates in [his] immediate breathing environment inside his cell.” His complaint also establishes that he was celled by himself in segregation for some period of time. Clemmons further states he has had “physical problems and medical problems as a result of ... inhal[ing] carcinogens from the tobacco of inmates who smoke tobacco” on a “daily basis” and expose him to “toxic smoke fumes” and “stress.” Clemmons alleges that he “suffers shortness of breath.” Clemmons’s pro se brief opposing summary judgment, signed but not sworn, states that his “throat, eyes and nose” were irritated by tobacco smoke and that this irritation required repeated medical care.

Even if Clemmons has presented sufficient facts in his affidavits and complaint linking his respiratory and eye irritation to the ETS in his cell, these symptoms alone do not compare to the medical needs that courts have found sufficiently serious to constitute an Eighth Amendment violation. See, e.g., Dace v. Solem, 858 F.2d 385, 386-88 (8th Cir.1988) (painful nasal deformity requiring surgery and head injury from being struck with a lead pipe may be sufficiently serious); Payne v. Lynaugh, 843 F.2d 177, 178-79 (5th Cir.1988) (severe emphysema requiring oxygen equipment sufficiently serious); French v. Owens, 777 F.2d 1250 (7th Cir.1985) (gross medical deficiencies in prison resulting in undiagnosed tuberculosis, untreated broken back, and unattended abscessed rectum sufficiently serious), cert. denied, 479 U.S. 817, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986); Aldridge v. Montgomery, 753 F.2d 970, 972 (11th Cir.1985) (deep, heavily bleeding eye injury requiring stitches sufficiently serious); Mullen v. Smith, 738 F.2d 317, 318 (8th Cir.1984) (injuries to back and head from fall causing continuous and severe pain for months and preventing inmate from walking may be sufficiently serious); Fields v. Gander, 734 F.2d 1313, 1314-15 (8th Cir.1984) (severely infected tooth and swollen face may be sufficiently serious); Ramos v. Lamm, 639 F.2d 559, 575-78 (10th Cir.1980) (systematic and gross deficiencies in medical, psychiatric, and dental care sufficiently serious), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.1979) (total denial of outside exercise and fresh air sufficiently serious); West v. Keve, 571 F.2d 158, 160-62 (3d Cir.1978) (chronic venous stasis and severe varicose veins in leg and posiosteal thickenings, all requiring surgery, may be sufficiently serious).

Besides the manifest symptoms of respiratory and eye irritation, however, Clem-mons claims his exposure to ETS may lead to more serious carcinogenic effects. The evidence Clemmons presents regarding carcinogenic effects consists of a flyer from the American Lung Association of Kansas describing the noxious ingredients of cigarette smoke, a news article mentioning the U.S. Surgeon General’s finding that “some carcinogens are released from the tip of the burning cigarette in concentrations higher than those inhaled by active smokers,” and an article relating the General Services Administration’s change in policy to favor nonsmokers in government facilities. However, Clemmons does not offer any evidence that shows effects pertaining to his personal health besides a sore throat and runny eyes and nose.

In an attempt to conjure up a factual dispute, the dissent speculates that Clemmons “could be forced to live indefinitely in a small cell with a heavy smoker.” This blind prognostication cannot save Clemmons’s action from dismissal. The Eighth Amendment does not sweep so broadly as to include possible latent harms to health. This court previously has held that the “core areas” of any Eighth Amendment claim are shelter, sanitation, food, personal safety, medical care, and adequate clothing. Ramos, 639 F.2d at 566 & n. 8; see Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399 (conditions of confinement in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), violated Eighth Amendment because of serious deprivations of basic necessities of life); Inmates of Occoquan v. Barry, 844 F.2d 828, 836-39 (D.C.Cir.1988) (“deprivations” that trigger Eighth Amendment scrutiny are deprivations of essential human needs — food, shelter, health care, and personal safety). Clemmons’s complaint that he is sometimes forced to share a cell with a smoker does not implicate any of these core Eighth Amendment areas, see Ramos, 639 F.2d at 566 & n. 8, nor does exposure to ETS “deprive [Clemmons] of the minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399; Inmates of Occoquan, 844 F.2d at 836-39.

If Clemmons’s claim colorably touches the most peripheral edge of a core Eighth Amendment area, it would be the area of adequate medical/health care. The deliberate indifference standard for medical care requires that the inmate’s illness or injury be a serious one. Estelle, 429 U.S. at 104-05, 97 S.Ct. at 291. For example, the following types of injuries were found to be sufficiently serious: four knife stab wounds, Reed v. Dunham, 893 F.2d 285 (10th Cir.1990); broken bones rendering limbs useless or the plaintiff unconscious, Mandel v. Doe, 888 F.2d 783 (11th Cir.1989) (cracked hipball joint); Brown v. Hughes, 894 F.2d 1533 (11th Cir.) (broken foot), cert. denied, — U.S.-, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990); Simpson v. Hines, 903 F.2d 400 (5th Cir.1990) (neck trauma); symptoms of a heart attack, Miltier v. Beorn, 896 F.2d 848 (4th Cir.1990) (chest pains, shortness of breath, dizziness); or chronic illness, White v. Napoleon, 897 F.2d 103 (3d Cir.1990) (epilepsy); Greason v. Kemp, 891 F.2d 829 (11th Cir.1990) (schizophrenic with suicidal tendencies).

Neither the Supreme Court nor this court has ever held that a potential, distant harm to a prisoner’s health is a serious medical need. Clemmons does not have a serious medical need; he has alleged no adverse physical symptoms from cigarette smoke different from those suffered by everyone in society. “[Cjonditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional” even if those conditions are sometimes “restrictive and even harsh.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Clemmons’s complaint regarding ETS is simply of a lesser magnitude than those cases that have found an Eighth Amendment violation due to deliberate indifference to serious medical need.

IV.

Even if we concede that exposure to ETS can have serious medical consequences, the allegation of exposure in a penitentiary setting, without more, is not enough to satisfy the subjective component of cruel and unusual punishment. If plaintiff had shown or even alleged that defendants forced him to live with others who smoked and that they did so intentionally, knowing the smoke would have serious medical consequences for him, a different result might obtain. Indeed, constant confinement under those conditions could be patently cruel. Yet, defendants consistently made a reasonable effort to accommodate plaintiffs needs consistent with the conditions found in the institution.

Plaintiffs desire was to be housed by himself. When he made this demand, he was advised that the overcrowded conditions would not permit single celling, however, if he could find another inmate who did not smoke, the institution would cell them together. Plaintiff himself admits this accommodation was made, and the district court found that at the time summary judgment was granted, plaintiff was celled with a nonsmoker. We believe this effort at reasonable accommodation satisfies any responsibility the defendants had to remove plaintiff from the irritants caused by ETS. In this regard, we also note plaintiff not only objected to being celled with persons who smoked, but he also objected to ETS from prison staff members. We simply do not believe the defendants could have made a more reasonable accommodation than that which they extended.¹

To successfully oppose the motion for summary judgment, Clemmons was required to present facts that would allow a reasonable fact finder to conclude that the defendants knew of the dangers of ETS and deliberately exposed him to it. In his affidavit, Clemmons alleges that the defendants exhibited “reckless disregard and deliberate indifference in their failure and refusal to permit me to cell in a single cell as a means to avoid being exposed to inhaling carcinogens.” He also claims he has “made every attempt available ... to seek a single cell” (emphasis added.) In his complaint, Clemmons asserts the defendants refused or failed to take action because of “deliberate indifference and reckless disregard.” He claims the defendants “refused to permit the plaintiff to live in a single cell” and the “double cell assignments are ... cruel and unusual punishment.” Besides these general allegations and legal conclusions, Clemmons offers no specific facts showing the defendants’ deliberate intent to expose him to carcinogens.

Although the defendants concede they did not authorize Clemmons to a single cell, Clemmons himself admits the defendants approved his cell assignment with a nonsmoking inmate as early as February 6, 1986 — one week after Clemmons says he first was exposed to ETS and only a few days after he asked prison officials for help in registering a complaint. Clemmons admits the record shows that as early as February 17, 1986, prison officials recommended he “find [a] nonsmoker to cell with.” He concedes prison officials told him they did not know “who smokes or doesn’t.” Finally, he admits the defendants celled him with nonsmokers part of the time.

Clemmons asserts in his appellate brief that medical personnel at the prison knew he suffered from ETS exposure and failed to take appropriate action. This assertion, however, is not supported by the record. Clemmons admits he was “consistently prescribed medications” when he notified medical personnel of his problems. Affidavits of Ky Hoang, M.D., and Sharon Wright, R.N., show that when Clemmons complained of shortness of breath and chest pains, Hoang examined him and found his lungs clear and his breathing normal. Hoang also stated that he did not believe ETS had imperiled Clemmons’s health. Clemmons presents no competent evidence showing prison medical personnel were convinced that the cause of his problems was ETS exposure requiring a nonsmoking cell. Because Clemmons has not shown deliberate indifference and the Eighth Amendment does not apply to claims based on inadvertent failure to. provide adequate care, negligent misdiagnosis, or an inmate’s difference of opinion with medical personnel regarding diagnosis or treatment, Wilson, 111 S.Ct. at 2324; Estelle, 429 U.S. at 107-08, 97 S.Ct. at 293; Ramos, 639 F.2d at 575, summary judgment for the defendants is proper.

Clemmons has not provided specific evidence showing that the defendants’ intent in making cell assignments was to disregard a serious medical need of Clem-mons. Further, it is unlikely the defendants could have been deliberately indifferent regarding ETS exposure in prison cells during 1986 and 1987 based on the state of knowledge about ETS at that time. In light of Clemmons’s admissions, we cannot infer from the single fact that Clemmons had smoking cellmates that the prison officials deliberately intended to expose Clem-mons to carcinogens. The Supreme Court has used the “deliberate indifference” language to describe the Eighth Amendment standard of “unnecessary and wanton infliction of pain.” See Estelle, 429 U.S. at 105, 97 S.Ct. at 291-92. Even adopting all of Clemmons’s unsupported assertions regarding the defendants’ actions, we cannot conclude that those actions fall within the purview of unnecessary and wanton infliction of pain. By asserting that Clem-mons’s claim of exposure to ETS raises a fact issue as to the defendants’ deliberate indifference, the dissent ignores — or at least disregards — both the Eighth Amendment’s “cruel and unusual punishment” language and also the “unnecessary and wanton infliction of pain” standard from which the deliberate indifference standard is derived.

y.

The role of this Court is not to spearhead and define society’s evolving standard of decency. Rather, this Court must interpret and apply the Constitution of the United States. When the dissent attempts to create new standards of decency based on reports by the Environmental Protection Agency and the Surgeon General, it ceases to interpret the Constitution. Instead of applying constitutional standards, the dissent’s reasoning mandates a public health ideal for all of society. See Rhodes, 452 U.S. at 351, 101 S.Ct. at 2401 (“In assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries ‘spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.’ ”) (quoting Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979)). Under the circumstances of this case, our role should be more limited: we should only decide whether Clemmons was subjected to cruel and unusual punishment when he was celled with a smoking prisoner. We find that he was not.

Our opinion in Clemmons I is VACATED and the district court is AFFIRMED.

1

. The dissent suggests that there is no evidence in the record that the defendants made a reasonable effort to accommodate plaintiff. However, when Clemmons complained about a cellmate who smoked, he was told to find a nonsmoker and they would be paired. The record indicated on several occasions that this was done. The record also demonstrates that, at least in one instance, Clemmons did not respond to this suggestion.

The dissent also suggests that the record is devoid of evidence that it would be "administratively inconvenient" to house nonsmokers together. Clemmons never contended that all nonsmokers should be communized. There simply was no reason to introduce such evidence.

Moreover, in more than one instance, Clem-mons claimed that his health was not only impaired by his cellmate's smoking, but also by the smoking of members of the "team.” This claim demonstrates that Clemmons seeks not only a cell to himself, but also a smoke-free environment in which communizing nonsmokers would not be satisfactory unless those inmates also were supervised by a nonsmoking staff.

Thus, unless we are prepared to conclude that the only accommodation that would satisfy Clemmons’s needs is to remove him to a smoke-free environment, there is nothing in the record to suggest that the defendants did not respond to each of Clemmons’s demands to the full extent available to them, given the conditions within the institution. We reach no such conclusion under these circumstances.