Larson v. Kempker

• Decision Date: 15 July 2005
• Docket Number: No. 04-2220.,04-2220.
• Citation: 414 F.3d 936
• Parties: William A. LARSON, Appellant, v. Gary KEMPKER; Michael Kemna; George Lombardi, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

414 F.3d 936

William A. LARSON, Appellant, v. Gary KEMPKER; Michael Kemna; George Lombardi, Appellees.

No. 04-2220.

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2005.

Filed: July 15, 2005.

Arthur A. Benson, II, argued, Kansas City, MO (Jamie K. Lansford, on brief), for appellant.

Bart Anton Matanic, argued, Assistant Attorney General, Jefferson City, MO, (Jeremiah W. (Jay) Nixon, on brief), for appellee.

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

William A. Larson appeals from summary judgment entered in the district court¹ dismissing his claim for damages against Missouri prison officials based upon his alleged excessive exposure to cigarette smoke while imprisoned. For reversal, Larson argues that the district court erred in granting summary judgment, in denying his motion for preliminary injunction, and in granting Gary Kempker, director of the Missouri Department of Corrections' motion to exclude testimony. We find no reversible error and affirm.

I. Background

In 1982, William A. Larson was convicted of capital murder and sentenced to life imprisonment. In 1997, Larson was transferred to the Crossroads Correctional Center (CCC) where he remains incarcerated. In August 1998, Larson filed a complaint regarding inmate smoking but never received a response. Larson filed a second complaint in November 2000. The second complaint was converted to a grievance and denied. Larson's appeal was lost, requiring him to refile his appeal. Larson's appeal was then denied. In September 2001, Larson filed a third smoking complaint, which was denied and converted to a grievance. The grievance was denied as was Larson's appeal. Larson then filed this suit in the district court under 42 U.S.C. § 1983 and the Prison Litigation Reform Act, 42 U.S.C. § 1997.

In addition to Kempker, Larson sued George Lombardi, director of the Missouri Division of Adult Institutions, and Michael Kemna, superintendent of CCC (collectively referred to as Kempker). Larson's suit alleged the defendants did not adequately protect him from exposure to second-hand smoke.² Larson has not been diagnosed with an allergy to environmental tobacco smoke (ETS) or with any current respiratory illness, disease or defect. Larson tested negative for coronary artery disease. Larson testified that years ago he was diagnosed as suffering from Asperger's Disorder, making him antisocial and necessitating that he be placed in a one-man cell. However, there is no medical record documentation for Asperger's Disorder or documentation connecting it with ETS. Larson believes there is such a connection. Larson sought an injunction as well as damages for infliction of cruel and unusual punishment and for denial of due process.

Following discovery, Kempker moved to exclude Larson's expert, Dr. A. Judson Wells from testifying on the basis that Dr. Wells' testimony failed to meet the requirements of Federal Rule of Evidence 702 or those of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Kempker also moved for summary judgment based on an Eleventh Amendment defense that there was no Eighth or Fourteenth Amendment abridgment of Larson's rights, and that the district court lacked jurisdiction to grant injunctive relief. Larson moved for leave to file a second amended complaint in order to sue Kempker individually. Larson subsequently filed a motion for a preliminary injunction, in part requesting the relief sought in the complaint and in part requesting that he be housed in a different location.

In a single order, the district court granted Kempker's motion for summary judgment and Kempker's motion to exclude Dr. Wells' testimony and denied Larson's motion to file a second amended complaint and Larson's preliminary injunction. From that decision Larson appeals.

II. Discussion

A. Standard of Review

We review a district court's decision to grant summary judgment de novo. Bowen v. Mo. Dep't of Soc. Servs., 311 F.3d 878, 880 (8th Cir.2002). Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The district court reviews the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995). The nonmoving party must show the existence of facts on the record which create a genuine issue. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).

B. Eleventh Amendment Immunity

We first address whether the Eleventh Amendment bars this suit as contended by Kempker against the defendants in their official capacities.³ Larson's original complaint stated that he was suing two of the defendants in their official and individual capacity. However, when Larson filed a First Amended Complaint and added Lombardi as a defendant, the complaint failed to indicate that he was suing the defendants in their individual capacities. Technically, Larson's complaint had to "contain a clear statement of his wish to sue defendants in their individual capacities." Egerdahl v. Hibbing Community College, 72 F.3d 615, 620 (8th Cir.1995) (citing Nix v. Norman, 879 F.2d 429 (8th Cir.1989)).

Here, however, this omission is not fatal to Larson's claim. In his complaint, Larson named the defendants individually without reference to the State of Missouri. We have held that "[o]ver the years ... important exceptions to state immunity from suit have been recognized which allow citizens to vindicate rights infringed on by the state. If a state official is named as a defendant instead of the state or one of its agencies, the Eleventh Amendment status of the suit is less straightforward." Nix v. Norman, 879 F.2d 429, 432 (8th Cir.1989) (internal quotations omitted) (citing Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although the Eleventh Amendment bars suits

seeking to impose a liability which must be paid from public funds in the state treasury, ... courts may order injunctions to prevent or remedy a state officer's conduct.... Courts may also award a wide range of prospective relief which serves to bring an end to a present violation of federal law ... even though accompanied by a substantial ancillary effect on the state treasury.

Id. (internal quotations and citations omitted). We hold that the district court had the discretion to order injunctive relief.

C. Denial of Preliminary Injunction on Eighth Amendment Claim

Larson contends the district court misapplied Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) in assessing the future risk to his health created by continued exposure to ETS. In Helling the Supreme Court held that a prisoner could state a cause of action under the Eighth Amendment by alleging that prison officials had permitted him to be exposed to levels of tobacco smoke that presented an unreasonable risk of serious harm to future health. To obtain an injunction, Helling requires Larson to prove both objective and subjective elements of an Eighth Amendment claim. Id. at 35, 113 S.Ct. 2475. "With respect to the objective factor, [Larson] must show that he himself is being exposed to unreasonably high levels of ETS." Id. (emphasis added). The Helling Court took into consideration that the inmate was not presently housed with a smoker. The objective factor requires "more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually 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." Id. at 36, 113 S.Ct. 2475 (emphasis in original).

The district court found that Larson failed to meet the objective test and denied his requested injunction. Our review confirms the finding of the district court that Larson failed to put forth objective evidence that he was subjected to unreasonably high levels of ETS. Larson's expert performed no scientific tests to establish the levels of ETS in Larson's cell. Furthermore, Larson did not present any other reliable basis to estimate the levels of ETS to which he is exposed or specific evidence concerning how those levels of ETS would affect his future health. The district court was correct in denying Larson's motion for a preliminary injunction. The evidence is insufficient to establish Larson was subjected to an unreasonable risk of harm from ETS. Having determined that Larson failed to satisfy the objective element of an Eighth Amendment claim, we need not address the subjective element.

D. Exclusion of Expert Testimony

Next, Larson argues that the district court erred by excluding the testimony of Dr. Wells under Fed.R.Evid. 702. We review a district court's decision to exclude expert testimony for abuse of discretion. Meterlogic, Inc. v. KLT, Inc., 368 F.3d 1017, 1019 (8th Cir.2004) (citing Children's Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 864 (8th Cir.2004)). "The district court must exclude expert testimony if it is so fundamentally unreliable that it can offer no assistance to the jury, otherwise, the factual basis of the testimony goes to the weight of the evidence." Id. (internal quotations omitted).

The district court excluded the testimony of Dr. Wells after determining that Dr. Wells did not have the education or training in any field that would permit him to testify about second-hand smoke. The district court stated "[h]e may have read what other experts have written on the subject, but this does not qualify him to speak with...