Nowaczyk, et a l . v . NHSP CV-99-351-M 01/18/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Steven J. Nowaczyk, et a l . , Plaintiffs
v. Civil N o . 99-351-M Opinion N o . 2001 DNH 013 Jeanne Shaheen, Governor of New Hampshire, Henry Risley, Commissioner of Corrections, Michael Cunningham, Warden of the New Hampshire State Prison, Defendants
O R D E R
This civil rights action, brought by twenty-two inmates at
the New Hampshire State Prison for Men in Concord (NHSP),
challenges the prison’s ban on the use and possession of tobacco
and tobacco related products (the tobacco-free policy).
Currently before the court are Defendants’ Motion for Summary
Judgment (document n o . 26) and Plaintiffs’ Motion to Stay Summary
Judgment Pursuant to Fed. R. Civ. P. 56(f) (document n o . 3 1 ) .
Standard of Review
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). When ruling upon a party’s motion for summary judgment,
the court must “view the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v .
Smith, 904 F.2d 1 1 2 , 115 (1st Cir. 1990).
The moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). If the
moving party carries its burden, the burden shifts to the
nonmoving party to demonstrate, with regard to each issue on
which it has the burden of proof, that a trier of fact could
reasonably find in its favor. See DeNovellis v . Shalala, 124
F.3d 2 9 8 , 306 (1st Cir. 1997).
At this stage, the nonmoving party “may not rest upon mere
allegation or denials of [the movant’s] pleading, but must set
forth specific facts showing that there is a genuine issue” of
material fact as to each issue upon which he or she would bear
2 the ultimate burden of proof at trial. Id. (quoting Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986)). In this context,
“a fact is ‘material’ if it potentially affects the outcome of
the suit and a dispute over it is ‘genuine’ if the parties’
positions on the issue are supported by conflicting evidence.”
International Ass’n of Machinists and Aerospace Workers v .
Winship Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir.
1996) (citations omitted).
If it is apparent from the affidavits of the party opposing
summary judgment that facts cannot be presented appropriately
without further discovery, the court may, pursuant to Rule 56(f),
grant a continuance. Generally speaking, a Rule 56(f) motion
must:
(1) be within a reasonable time after the filing of the summary judgment motion; (2) place the district court on notice that movant wants the court to delay action on the summary judgment motion, whether or not the motion cites Rule 56(f); (3) demonstrate that movant has been diligent in conducting discovery, and show good cause why the additional discovery was not previously practicable with reasonable diligence; (4) set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist, and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion; and (5)
3 attest that the movant has personal knowledge of the recited grounds for the requested continuance.
Simas v . First Citizens’ Federal Credit Union, 170 F.3d 3 7 , 45
n.4 (1st Cir. 1999) (internal citations and quotation marks
omitted) (emphasis added).
Factual and Procedural Background
In June of 1999, NHSP began taking steps to implement a
tobacco-free policy. A series of memoranda were distributed to
inmates and staff informing them of the policy, the steps to be
taken to implement the policy, and inviting comments and
suggestions about how best to achieve implementation. By August
1 1 , 1999, smoking cessation programs were developed for both
staff and inmates which included presentation of a series of
videos dealing with smoking issues; establishment of inmate
facilitated support groups; a wellness exercise program; access
to nicotine patches to assist in overcoming the nicotine habit;
and the availability of carrots and celery sticks for
distraction. Initially, inmates were going to be required to pay
in advance for nicotine patches, but, following suggestions from
4 inmates, a payment plan was developed to account for some
inmates’ lack of readily available funds.
Twenty-two NHSP inmates filed this suit on August 4 , 1999,
alleging that the prison’s tobacco-free policy violates the
Eighth Amendment’s prohibition against cruel and unusual
punishment, and violates the Ninth Amendment “insofar as the
right to smoke cigarettes and generally use tobacco related
products is one of those enumerated individual ‘laws of nature’
right[s] people have and is protected by penumbras formed by
emanations from other enumerated rights, specifically the First,
Third, Fourth, and Fifth Amendments . . . .” Complaint at 1 .
The original endorsed discovery plan established a discovery
deadline of August 3 1 , 2000. NHSP imposed the tobacco ban on
September 1 , 1999. Plaintiffs served defendants with a request
for documents on October 4 , 1999. That request was apparently
ignored, but plaintiffs never moved to compel production. The
case was later stayed pending resolution of a similar and earlier
filed state proceeding, and reopened on January 4 , 2000, after
the state suit was voluntarily withdrawn. The original discovery
plan was re-adopted when the stay was lifted, with the amendment
5 that dispositive motions could be filed at any time. See Order
of Jan. 4 , 2000.
On April 2 7 , 2000, plaintiffs served defendants with another
discovery request captioned “Interrogatories & Documents Request
#1.” Defendants responded on June 8 , 2000, with answers and
objections. No documents were attached and plaintiffs again
failed to pursue available remedies to compel more complete
responses.
Defendants - the prison warden, the commissioner of
corrections, and the governor of New Hampshire - moved for
summary judgment on July 3 , 2000 (document n o . 2 6 ) . In response,
plaintiffs moved for a continuance in order to complete further
discovery (document n o . 2 8 ) . See Fed. R. Civ. P. 56(f). Because
the additional information sought by plaintiffs was not
sufficiently specified, this court denied plaintiffs’ motion for
additional time to respond. But, noting plaintiffs’ pro se
status, the court described the information required to consider
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Nowaczyk, et a l . v . NHSP CV-99-351-M 01/18/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Steven J. Nowaczyk, et a l . , Plaintiffs
v. Civil N o . 99-351-M Opinion N o . 2001 DNH 013 Jeanne Shaheen, Governor of New Hampshire, Henry Risley, Commissioner of Corrections, Michael Cunningham, Warden of the New Hampshire State Prison, Defendants
O R D E R
This civil rights action, brought by twenty-two inmates at
the New Hampshire State Prison for Men in Concord (NHSP),
challenges the prison’s ban on the use and possession of tobacco
and tobacco related products (the tobacco-free policy).
Currently before the court are Defendants’ Motion for Summary
Judgment (document n o . 26) and Plaintiffs’ Motion to Stay Summary
Judgment Pursuant to Fed. R. Civ. P. 56(f) (document n o . 3 1 ) .
Standard of Review
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). When ruling upon a party’s motion for summary judgment,
the court must “view the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v .
Smith, 904 F.2d 1 1 2 , 115 (1st Cir. 1990).
The moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). If the
moving party carries its burden, the burden shifts to the
nonmoving party to demonstrate, with regard to each issue on
which it has the burden of proof, that a trier of fact could
reasonably find in its favor. See DeNovellis v . Shalala, 124
F.3d 2 9 8 , 306 (1st Cir. 1997).
At this stage, the nonmoving party “may not rest upon mere
allegation or denials of [the movant’s] pleading, but must set
forth specific facts showing that there is a genuine issue” of
material fact as to each issue upon which he or she would bear
2 the ultimate burden of proof at trial. Id. (quoting Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 256 (1986)). In this context,
“a fact is ‘material’ if it potentially affects the outcome of
the suit and a dispute over it is ‘genuine’ if the parties’
positions on the issue are supported by conflicting evidence.”
International Ass’n of Machinists and Aerospace Workers v .
Winship Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir.
1996) (citations omitted).
If it is apparent from the affidavits of the party opposing
summary judgment that facts cannot be presented appropriately
without further discovery, the court may, pursuant to Rule 56(f),
grant a continuance. Generally speaking, a Rule 56(f) motion
must:
(1) be within a reasonable time after the filing of the summary judgment motion; (2) place the district court on notice that movant wants the court to delay action on the summary judgment motion, whether or not the motion cites Rule 56(f); (3) demonstrate that movant has been diligent in conducting discovery, and show good cause why the additional discovery was not previously practicable with reasonable diligence; (4) set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist, and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion; and (5)
3 attest that the movant has personal knowledge of the recited grounds for the requested continuance.
Simas v . First Citizens’ Federal Credit Union, 170 F.3d 3 7 , 45
n.4 (1st Cir. 1999) (internal citations and quotation marks
omitted) (emphasis added).
Factual and Procedural Background
In June of 1999, NHSP began taking steps to implement a
tobacco-free policy. A series of memoranda were distributed to
inmates and staff informing them of the policy, the steps to be
taken to implement the policy, and inviting comments and
suggestions about how best to achieve implementation. By August
1 1 , 1999, smoking cessation programs were developed for both
staff and inmates which included presentation of a series of
videos dealing with smoking issues; establishment of inmate
facilitated support groups; a wellness exercise program; access
to nicotine patches to assist in overcoming the nicotine habit;
and the availability of carrots and celery sticks for
distraction. Initially, inmates were going to be required to pay
in advance for nicotine patches, but, following suggestions from
4 inmates, a payment plan was developed to account for some
inmates’ lack of readily available funds.
Twenty-two NHSP inmates filed this suit on August 4 , 1999,
alleging that the prison’s tobacco-free policy violates the
Eighth Amendment’s prohibition against cruel and unusual
punishment, and violates the Ninth Amendment “insofar as the
right to smoke cigarettes and generally use tobacco related
products is one of those enumerated individual ‘laws of nature’
right[s] people have and is protected by penumbras formed by
emanations from other enumerated rights, specifically the First,
Third, Fourth, and Fifth Amendments . . . .” Complaint at 1 .
The original endorsed discovery plan established a discovery
deadline of August 3 1 , 2000. NHSP imposed the tobacco ban on
September 1 , 1999. Plaintiffs served defendants with a request
for documents on October 4 , 1999. That request was apparently
ignored, but plaintiffs never moved to compel production. The
case was later stayed pending resolution of a similar and earlier
filed state proceeding, and reopened on January 4 , 2000, after
the state suit was voluntarily withdrawn. The original discovery
plan was re-adopted when the stay was lifted, with the amendment
5 that dispositive motions could be filed at any time. See Order
of Jan. 4 , 2000.
On April 2 7 , 2000, plaintiffs served defendants with another
discovery request captioned “Interrogatories & Documents Request
#1.” Defendants responded on June 8 , 2000, with answers and
objections. No documents were attached and plaintiffs again
failed to pursue available remedies to compel more complete
responses.
Defendants - the prison warden, the commissioner of
corrections, and the governor of New Hampshire - moved for
summary judgment on July 3 , 2000 (document n o . 2 6 ) . In response,
plaintiffs moved for a continuance in order to complete further
discovery (document n o . 2 8 ) . See Fed. R. Civ. P. 56(f). Because
the additional information sought by plaintiffs was not
sufficiently specified, this court denied plaintiffs’ motion for
additional time to respond. But, noting plaintiffs’ pro se
status, the court described the information required to consider
a new motion and granted leave to refile with specificity by
September 1 5 , 2000. See Order of Aug. 3 0 , 2000.
6 Discussion
Plaintiffs’ renewed Rule 56(f) motion requests further time
for discovery to seek the following information:
(A) medical evidence justifying the Defendants’ decision to ban tobacco products and their conclusions regarding the implementation plan;
(B) evidence supporting Defendants’ claim of valid penological objectives;
(C) research, reports, feasibility studies, and/or information from any and all medical experts and staff on which Defendants relied;
(D) any and all service and repair reports for the maintenance of the plant and equipment;
(E) any and all reports regarding the cost breakdown of any increases or decreases in health care services for the inmate population relating to tobacco use;
(F) charts and reports related to increased acts of violence due to the tobacco ban;
(G) the qualifications of the group and exercise program facilitators;
(H) the medical basis for the brand of nicotine patch offered; and
(I) responses to the October 4 , 1999, request for documents and to interrogatories served on Governor Shaheen on August 8 , 2000.
See P l . Mot. Pursuant to Fed. R. Civ. P. 56(f) (Pl. Rule 56(f)
Mot.) ¶¶ 9, 11-14, 29-33 (document n o . 3 1 ) . Plaintiffs have also
7 moved the court to appoint a medical expert for them and/or to
order defendants to produce a study on nicotine addiction
recently completed by a D r . Difranza of the University of
Massachusetts. Id. ¶¶ 6, 40-43.
While more detailed than their previous Rule 56(f) motion,
plaintiffs’ current motion is also denied because the information
they seek does not address the issues raised in defendants’
summary judgment motion and would not raise any genuine issues of
material fact. At the least, plaintiffs have not offered any
plausible basis for believing that facts they hope to develop
would influence the outcome of the pending summary judgment
motions.
First, there is no federal constitutional right to use
tobacco. See, e.g., Grass v . Sargent, 903 F.2d 1206, 1206 (8th
Cir. 1990) (per curium); Reynolds v . Buck, 833 F. Supp. 5 1 8 , 519
(E.D. P a . 1993); Doughty v . Board of County Comm’rs, 731 F. Supp.
423, 426 (D. Colo. 1993). Prison officials are of course duty
bound to protect the health and safety of inmates, and failure to
perform that duty might well constitute a violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment, if
8 the pertinent acts or omissions are egregious and the product of
a culpable state of mind. See Farmer v . Brennan, 511 U.S. 825,
833-34 (1994); Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976). The
burden is on plaintiffs, however, to establish such a violation
by proving a serious deprivation of basic human needs, such as
food, water, safety, or medical care, as well as deliberate
indifference to such a need on the part of prison officials and
resulting harm. See Helling v . McKinney, 509 U.S. 2 5 , 32 (1993)
(citing DeShaney v . Winnebago County Dept. of Soc. Serv., 489
U.S. 189, 199-200 (1987)). Deliberate indifference, the
subjective component of an Eighth Amendment claim, might be
established by evidence that an “official knows of and disregards
an excessive risk to inmate health or safety.” Farmer, 511 U.S.
at 837.
But, the Eighth Amendment does not mandate comfortable
prisons, Rhodes v . Chapman, 452 U.S. 3 3 7 , 349 (1981), nor does it
grant prisoners a right to smoke, or to treatment programs of
their choice. Fiallo v . Batista, 666 F.2d 729, 731 (1st Cir.
1981).
9 Tobacco is not a basic human need. Indeed, plaintiffs
necessarily concede that tobacco is actually harmful to human
health. See Complaint ¶ 8 . But, they argue, nicotine withdrawal
does constitute a serious medical need for some habitual tobacco
users, and, in implementing the prison’s tobacco-free policy,
defendants were deliberately indifferent to that medical need.
Additionally, plaintiffs challenge the tobacco-free policy on
grounds that it poses an excessive risk of harm to all inmates,
because inmates experiencing nicotine withdrawal are more likely
to engage in violent behavior toward others.
The warden acknowledges some unavoidable discomfort
associated with quitting smoking (or other tobacco use) and the
attendant physical effects of nicotine withdrawal. See Def.
Summ. J. Mot. Ex. A , Cunningham Aff. ¶6 (Cunningham A f f . ) . He
also concedes that discrete medical studies were not conducted by
the administration, and medical experts were not directly
consulted prior to implementing the tobacco-free policy. See P l .
56(f) Mot. Ex. B , Interrog. 2 . However, he says in his affidavit
(attached to defendants’ summary judgment motion) that prison
officials in other states, that had implemented similar policies,
10 were consulted. See Cunningham Aff. ¶ 5 . Indeed, the
implementation programs put in place at NHSP are very similar t o ,
if not more comprehensive than, programs implementing smoking
bans upheld in other jurisdictions. See Reynolds v . Buck, 833 F.
Supp. 5 1 8 , 519, 520 (E.D.Pa. 1993) (“classes on how to overcome
the craving to smoke” and snacks); Doughty v . Board of County
Comm’rs, 731 F. Supp. 423, 427 (D. Colo. 1989) (“some counseling
and medical assistance to inmates who request i t , and . . .
video-taped movies on quitting smoking available”). The warden
also notes that, in addition to the programs outlined in his
August 1 1 , 2000, memorandum, “all inmates have access to the
Health Services Center and have complete access to medical staff
should medical treatment be required.” Cunningham Aff. ¶ 7 .
These facts are undisputed at this point, and would seem to
belie any claim that defendants have ignored a known serious risk
to plaintiffs’ health with deliberate indifference. The
additional discovery sought by plaintiffs, whatever its content
might turn out to b e , would not put these material facts in
dispute, nor do plaintiffs suggest that the pertinent facts
related to implementation of the policy can be reasonably
11 disputed. Indeed nothing in plaintiffs’ motion suggests how the
additional discovery might relate to issues raised in the summary
judgment motion.
With regard to the safety issue raised by plaintiffs, the
record reveals that other officials with whom the warden
consulted “indicated that there had been no increase in violence
at their institutions attributable to implementing a tobacco-free
policy.” Cunningham Aff. ¶ 5 . The warden is unaware of any
increase in either related or overall violence since the tobacco-
free policy was implemented over a year ago. Id. ¶ 1 0 . But
those asserted facts seem immaterial, and even if the information
sought by plaintiffs relative to prison violence revealed
something different – say a statistical increase in prisoner
violence – that would not be relevant to the issues raised in the
summary judgment motion. It would be an impossible stretch to
claim, for example, that a prison policy banning tobacco is
necessarily rendered unconstitutional because habitual smokers
might be more inclined to unlawfully assault others if deprived
of tobacco. “[N]ot . . . every injury suffered by one prisoner
at the hands of another . . . translates into constitutional
12 liability for prison officials responsible for the victim’s
safety.” Farmer, 511 U.S. at 834. Besides, even if a causal
connection could be made between the tobacco-free policy and an
increased risk of violence, the solution would lie in measures
designed to limit the risk or control the violence, and not in
mandating the availability of tobacco in the prison.
Conclusion
Accordingly, plaintiffs’ Rule 56(f) motion (document n o . 31)
is denied. Plaintiffs must object or otherwise respond to
defendants’ pending motion for summary judgment (document n o .
2 6 ) , on or before February 1 6 , 2001. The trial is continued; a
new date will be set by the Clerk.
13 SO ORDERED.
Steven J. McAuliffe United States District Judge
January 1 8 , 2001
cc: Steven Nowaczyk Stephen Dugay James Towne John L . Watt Elmer Lee Baron Michael C . Herrick Steve Merchant Arthur Burley Carl Laurie Richard Pliskaner Albert Nadeau Jeff Eastman Charles Johnson Earnest Therrier James Poulicakos Patrick Morehouse Robert Phair, J r . Keith Mountjoy Raven Dodge Walter Bourque Leon Cable Patrick S . Parrish Daniel J. Mullen, Esq.