Nowaczyk, et a l . v . Shaheen, et a l . CV-99-351-M 03/16/01 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 052 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. Defendants - the governor of New
Hampshire, the commissioner of corrections, and the NHSP warden -
move for summary judgment (document n o . 2 6 ) . See Fed. R. Civ. P.
56.
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 112, 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. 317, 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 298, 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
the ultimate burden of proof at trial. Id. (quoting Anderson v .
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In this context,
2 “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).
Factual and Procedural Background
The facts are presented in detail in the court’s order dated
January 1 8 , 2001, and need not be repeated in full here.
Briefly, however, the framework is as follows.
The NHSP instituted a policy in 1999 prohibiting the use of
all tobacco products by staff and inmates at the prison (the
tobacco-free policy). The policy was implemented over the course
of several months, and has been in full effect since September 1 ,
1999. Implementation included provision of a smoking cessation
program that included the presentation of a series of
instructional videos related to smoking issues; the establishment
of inmate facilitated support groups; a wellness exercise
program; access to nicotine patches to assist in overcoming
acquired nicotine habits; and the availability of carrots and
3 celery sticks to provide distraction for former smokers and
tobacco users. Throughout the transition or implementation
process inmates and staff were invited to contribute suggestions
and were regularly informed about the steps to be taken, the
progress of the implementation program.
Plaintiffs challenge the tobacco-free policy on grounds that
it violates their right to smoke as well as their Eighth
Amendment right to be free from cruel and unusual punishment.
They also allege that under New Hampshire law, and given the fact
that tobacco was readily available in prisons for decades, they
enjoy a state liberty interest in tobacco use that is vitiated by
the tobacco-free policy.
In ruling on plaintiffs’ earlier motion for more time to
respond to defendants’ motion for summary judgment, the court
found that, because there is no federal constitutional right to
use tobacco, the only federal issue that remains in this case is
whether the tobacco-free policy, and its implementation, violated
plaintiffs' Eighth Amendment rights. See Order of Jan. 1 8 , 2001.
4 Discussion
The Eighth Amendment prohibition against cruel and unusual
punishment is not limited to precluding barbaric, physical
torture. See Laaman v . Helgemoe, 437 F. Supp. 269, 307 (D.N.H.
1977). The Eighth Amendment is also violated when prison
officials, acting with deliberate indifference, deprive prisoners
of basic human needs, such as food, water, safety, and medical
care. See, e.g., Farmer v . Brennen, 511 U.S. 825, 832.
"Deliberate indifference" entails both an objective and a
subjective component. See, e.g., Wilson v . Seiter, 501 U.S. 294,
298 (1991). To satisfy the objective component, the deprivation
must be sufficiently severe. See id. (“[O]nly those deprivations
denying ‘the minimal civilized measure of life’s necessities[]’ .
. . are sufficiently grave to form the basis of an Eighth
Amendment violation.” (citation omitted)). The subjective
component requires a showing that prison officials “know[] of and
disregard[] an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837. “[A]n official’s failure to alleviate a
significant risk that he should have perceived but did not, while
no cause for commendation, cannot . . . be condemned as the
infliction of punishment.” Id. at 838.
5 Here, plaintiffs allege that defendants acted with
deliberate indifference to their medical and safety needs. In
denying plaintiffs’ motion for more time to respond to summary
judgment, the court highlighted the record evidence suggesting
that defendants likely did not disregard any known, excessive
risks when they implemented the tobacco-free policy. See Order
of Jan. 1 8 , 2001 at 10-11. With regard to medical concerns, the
warden’s affidavit (attached to defendants’ motion for summary
judgment) demonstrates that, although he did not employ any
discrete medical studies or directly consult with medical experts
before implementing the tobacco-free policy, he did consult with
prison officials in other states that had implemented similar
policies. Cunningham Aff. ¶ 5 . It was also noted that the
Free access — add to your briefcase to read the full text and ask questions with AI
Nowaczyk, et a l . v . Shaheen, et a l . CV-99-351-M 03/16/01 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 052 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. Defendants - the governor of New
Hampshire, the commissioner of corrections, and the NHSP warden -
move for summary judgment (document n o . 2 6 ) . See Fed. R. Civ. P.
56.
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 112, 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. 317, 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 298, 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
the ultimate burden of proof at trial. Id. (quoting Anderson v .
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In this context,
2 “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).
Factual and Procedural Background
The facts are presented in detail in the court’s order dated
January 1 8 , 2001, and need not be repeated in full here.
Briefly, however, the framework is as follows.
The NHSP instituted a policy in 1999 prohibiting the use of
all tobacco products by staff and inmates at the prison (the
tobacco-free policy). The policy was implemented over the course
of several months, and has been in full effect since September 1 ,
1999. Implementation included provision of a smoking cessation
program that included the presentation of a series of
instructional videos related to smoking issues; the establishment
of inmate facilitated support groups; a wellness exercise
program; access to nicotine patches to assist in overcoming
acquired nicotine habits; and the availability of carrots and
3 celery sticks to provide distraction for former smokers and
tobacco users. Throughout the transition or implementation
process inmates and staff were invited to contribute suggestions
and were regularly informed about the steps to be taken, the
progress of the implementation program.
Plaintiffs challenge the tobacco-free policy on grounds that
it violates their right to smoke as well as their Eighth
Amendment right to be free from cruel and unusual punishment.
They also allege that under New Hampshire law, and given the fact
that tobacco was readily available in prisons for decades, they
enjoy a state liberty interest in tobacco use that is vitiated by
the tobacco-free policy.
In ruling on plaintiffs’ earlier motion for more time to
respond to defendants’ motion for summary judgment, the court
found that, because there is no federal constitutional right to
use tobacco, the only federal issue that remains in this case is
whether the tobacco-free policy, and its implementation, violated
plaintiffs' Eighth Amendment rights. See Order of Jan. 1 8 , 2001.
4 Discussion
The Eighth Amendment prohibition against cruel and unusual
punishment is not limited to precluding barbaric, physical
torture. See Laaman v . Helgemoe, 437 F. Supp. 269, 307 (D.N.H.
1977). The Eighth Amendment is also violated when prison
officials, acting with deliberate indifference, deprive prisoners
of basic human needs, such as food, water, safety, and medical
care. See, e.g., Farmer v . Brennen, 511 U.S. 825, 832.
"Deliberate indifference" entails both an objective and a
subjective component. See, e.g., Wilson v . Seiter, 501 U.S. 294,
298 (1991). To satisfy the objective component, the deprivation
must be sufficiently severe. See id. (“[O]nly those deprivations
denying ‘the minimal civilized measure of life’s necessities[]’ .
. . are sufficiently grave to form the basis of an Eighth
Amendment violation.” (citation omitted)). The subjective
component requires a showing that prison officials “know[] of and
disregard[] an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837. “[A]n official’s failure to alleviate a
significant risk that he should have perceived but did not, while
no cause for commendation, cannot . . . be condemned as the
infliction of punishment.” Id. at 838.
5 Here, plaintiffs allege that defendants acted with
deliberate indifference to their medical and safety needs. In
denying plaintiffs’ motion for more time to respond to summary
judgment, the court highlighted the record evidence suggesting
that defendants likely did not disregard any known, excessive
risks when they implemented the tobacco-free policy. See Order
of Jan. 1 8 , 2001 at 10-11. With regard to medical concerns, the
warden’s affidavit (attached to defendants’ motion for summary
judgment) demonstrates that, although he did not employ any
discrete medical studies or directly consult with medical experts
before implementing the tobacco-free policy, he did consult with
prison officials in other states that had implemented similar
policies. Cunningham Aff. ¶ 5 . It was also noted that the
NHSP's implementation program was very similar t o , if not more
comprehensive than, programs implementing smoking bans 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”). Furthermore, the
6 warden’s affidavit explains that in addition to the
implementation program, “all inmates have access to the Health
Services Center, and have complete access to medical staff should
medical treatment be required.” Cunningham Aff. ¶ 7 . Moreover,
plaintiffs acknowledge that the warden distributed several
memoranda in the months prior to full implementation of the
tobacco-free policy, informing them in advance of the changes and
inviting suggestions about how best to manage the transition.
Plaintiffs claim that they should have been given individual
medical examinations to assess the potential impact of the
tobacco-free policy, but do not raise a genuine dispute1 as to
the facts that the warden actively sought advice from those
experienced in implementing similar policies and that, in
addition to those provided by the specific implementation
program, inmates had and have a full range of medical services
readily available to them. Cf. Fiallo v . Batista, 666 F.2d 729,
731 (1st Cir. 1981) (finding inmates not entitled to treatment
programs of choice). There is no evidence to suggest that any
1 Plaintiffs' characterization of the warden's sworn affidavit as "hallow [sic] words" and "subjective statements" are mere allegations, not evidence sufficient to genuinely dispute the affidavit. See International Ass’n of Machinists and Aerospace Workers, 103 F.3d at 199-200.
7 official has interfered with any inmate’s attempt to seek medical
treatment for alleged nicotine withdrawal symptoms. Furthermore,
plaintiff’s allegations that the true intent behind the tobacco-
free policy was punishment, and that the implementation programs
were “just a ruse for the courts,” amount to little more than
unsupported and implausible claims — claims that certainly do not
qualify as evidence sufficient to raise a genuine dispute as to
material facts. This is also true with respect to plaintiffs’
creative conspiracy theory — that they were “unwitting subjects”
and defendants “subjected them to illegal experimentation without
disclosing the defendants[’] eventual goal of banning the
addictive drug to monitor the reactions.”
As for the safety issue, plaintiffs claim that the tobacco-
free policy places them at excessive risk of injury because
inmates experiencing withdrawal symptoms are more likely to be
violent, and violent incidents have indeed occurred. But, “not .
. . every injury suffered by one prisoner at the hands of another
. . . translates into constitutional liability for prison
officials responsible for the victim’s safety.” Farmer, 511 U.S.
at 834. Some prisoners tend to be violent people, for any number
of reasons not related to living in a tobacco-free environment.
8 The evidence presented here, again, precludes finding that
defendants disregarded a known excessive risk to plaintiffs'
safety when they implemented the tobacco-free policy, because the
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,” and nothing
suggests NHSP officials thought otherwise. Cunningham Aff. ¶ 5.
There would have been no reason for NHSP officials to think that
inmates at NHSP would react any differently, and there is no
credible basis to find that they have. More importantly, the
pertinent question is not whether the warden should have expected
violence to increase as a result of implementing a tobacco-free
policy, but rather whether defendants knew the prison to be
incapable of handling such unwarranted and unlawful violence, or
allowed it to occur without interference. There is simply no
evidence from which to draw either conclusion.
Conclusion
The evidence belies any conclusion that defendants
disregarded any known, excessive risk to plaintiffs when they
implemented the tobacco-free policy at NHSP. Accordingly,
9 defendants’ motion for summary judgment (document n o . 26) is
granted with respect to all federal claims.
As for plaintiffs’ claim(s) that they enjoy a right to use
tobacco while incarcerated under state statutory or common law,
the court declines to exercise its supplemental jurisdiction over
those potential state law causes of action. See generally,
Camelio v . American Federation, 137 F.3d 666 (1st Cir. 1998).
Accordingly, those state law claim(s) are dismissed without
prejudice to refiling in state court.
The clerk shall enter judgment for defendants on the federal
claims and close the case.
10 SO ORDERED.
Steven J. McAuliffe United States District Judge
March 1 6 , 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, Jr. Keith Mountjoy Raven Dodge Walter Bourque Leon Cable Daniel J. Mullen, Esq.