918 F.2d 858 (10th Cir. 1990), 88-2730, Clemmons v. Bohannon

Docket Nº:88-2730.
Citation:918 F.2d 858
Party Name:Edward Lee CLEMMONS, Plaintiff-Appellant, v. Dale BOHANNON, Robert Tansy, Herb Maschner, and Robert Mills, Defendants-Appellees.
Case Date:October 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 858

918 F.2d 858 (10th Cir. 1990)

Edward Lee CLEMMONS, Plaintiff-Appellant,

v.

Dale BOHANNON, Robert Tansy, Herb Maschner, and Robert

Mills, Defendants-Appellees.

No. 88-2730.

United States Court of Appeals, Tenth Circuit

October 9, 1990

Rehearing and Rehearing En Banc

Granted Nov. 14, 1990.

Page 859

Tacha, Circuit Judge, filed a dissenting opinion.

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Edward Lee Clemmons, pro se.

Robert T. Stephan, Atty. Gen. (Carol R. Bonebrake, Asst. Atty. Gen., with him on the brief), Topeka, Kan., for defendants-appellees.

Before McKAY, SEYMOUR, and TACHA, Circuit Judges.

SEYMOUR, Circuit Judge.

Pro se plaintiff Edward Lee Clemmons, an inmate at the Kansas State Penitentiary, sued officials of the Kansas Department of Corrections under 42 U.S.C. Sec. 1983 (1982), alleging violations of the Eighth and Fourteenth Amendments arising out of his involuntary subjection to environmental tobacco smoke. He also contends that defendants imposed disciplinary segregation in retaliation for asserting his alleged rights. The district court granted summary judgment for defendants, and Clemmons appeals. We reverse, concluding that defendants' policy of permitting the indefinite double-celling of smokers with nonsmokers against their expressed will can amount to deliberate indifference to the health of nonsmoking inmates in violation of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. 1 We remand these claims for further consideration. We otherwise affirm the district court's grant of summary judgment. 2

I.

Clemmons is a Muslim inmate at the Kansas State Penitentiary in Lansing, Kansas. He has been double-celled with another inmate in a cell originally designed for one prisoner, apparently since his admission to the penitentiary, due to overcrowding in existing prison facilities. Although Clemmons is a nonsmoker for both religious and health reasons, he has been forced to share a cell with smoking inmates at the discretion of the Department of Corrections. Clemmons contends that his subjection to smoking cellmates in a sixty-three square foot cell has led to significant involuntary exposure to "passive," "secondary," or "environmental tobacco smoke" (ETS), amounting to deliberate indifference to his health in violation of the Eighth Amendment, and of his Fourteenth Amendment right to substantive due process.

In response to Clemmons' complaint, the district court ordered defendants to prepare a Martinez report. See Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) (en banc) (per curiam). Defendants did so, attaching doctors' examination reports showing no symptoms of shortness of breath or pneumonia after Clemmons' complaints of irritation due to cigarette smoke. Defendants then filed a motion for summary judgment. Clemmons' response to the motion included affidavits from smoking and nonsmoking prisoners, as well as exhibits showing his various requests for nonsmoking cellmates, defendants' responses to his requests, and documentation of the health hazards of ETS. The district court granted defendants' motion for summary judgment, concluding that Clemmons had failed to raise a cognizable claim. The court held that Clemmons' involuntary exposure to ETS resulting from double-celling a nonsmoker with a smoker was a mere "inconvenience" with no constitutional significance.

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The court also granted Eleventh Amendment immunity from Clemmons' requests for compensatory and punitive damages to all defendants in their official capacities, and granted them qualified immunity in their individual capacities. Finally, the court dismissed Clemmons' claim of retaliation as frivolous. On appeal, Clemmons contends that the district court erred in dismissing his Eighth Amendment, Fourteenth Amendment, and retaliation claims, but he does not urge as error the district court's conclusion that defendants are immune from liability for damages.

II.

When reviewing a grant of summary judgment, we must determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied. See Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986). In deciding the constitutional claims in this case, the district court appears to have accepted the facts as shown in Clemmons' exhibits and affidavits, concluding that Clemmons raised no fact issues pertinent to a constitutional claim. In reviewing this decision, we must construe all pleadings and documentary evidence liberally in favor of the party opposing the motion. Id. This standard is particularly apt when the nonmoving party is a pro se prisoner. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (pro se complaint "can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief' ") (citations omitted); see also Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988). We then review de novo the questions of law presented by the facts so construed.

When viewed in this light, the record shows that Clemmons alleged that ETS is "harmful" and "hazardous to health." Memorandum in Support of Plaintiff's Motion, rec., vol. I, doc. 22, at 4; id. at ex. 4 (letter from Clemmons to Herb Maschner dated May 7, 1987). Clemmons also somewhat awkwardly attempted to produce evidence that ETS is a positive health hazard. See id. at ex. 6 (flyer from American Lung Association of Kansas and newspaper article concerning danger of cancer from secondhand smoke); see also id. ex. 5 at 3 (letters from prison physician and his assistant recommending that Clemmons "should reside in a cell with a nonsmoker, if possible").

Despite Clemmons' repeated complaints about his confinement in a small cell with a smoker, defendants have made no sustained effort to find him a nonsmoking cellmate. Although Clemmons has sometimes been celled with nonsmokers, these arrangements appear to have been of short duration. Defendants do not dispute that the vast majority of Clemmons' cellmates have been regular smokers. Further, it is undisputed that Clemmons could be forced to cell with a smoker indefinitely, in the discretion of the Department of Corrections, for no stated reason.

Clemmons, in a multitude of written requests and letters to corrections officials, has repeatedly requested either a single cell or a nonsmoking cellmate. His single-cell requests were denied because of lack of space. The responses to his requests for a nonsmoking cellmate were more varied. On one occasion, his request was approved but he was thereafter assigned with a smoker. On other occasions, he was told his request would "be considered." See rec., vol. I, doc. 22, ex. 4, at 1. In response to yet other requests, he was told that since prison officials had "no way of knowing who smokes or doesn't," id. at 7, he should "find a nonsmoker and let [them] know," see id. at 4. On some occasions, Clemmons would reply that he was unable to find such a person, while at other times he would submit a list of nonsmoking inmates. Neither reply appears to have made a difference.

When Clemmons asked at one point to remain cellmates with a nonsmoker because they "desire[d] to protect [their] health from exposure to tobacco smoke in [their] cell breathing space where [they] live," id. at 9, his request was denied for

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unexplained reasons. Id. Clemmons attached the letters cited above from the prison physician and from his assistant to yet another written request for a nonsmoking cellmate. He was told that if he found an "appropriate" nonsmoker, they could be moved together. The upshot of this exchange is not evident in the record.

Defendants' position below and on appeal is that the prison's treatment of Clemmons did not constitute deliberate indifference within the meaning of the Eighth Amendment, nor a violation of the Fourteenth Amendment. Defendants continue to maintain that Clemmons' retaliation claim is frivolous.

III.

  1. The Eighth Amendment Claim

    The applicable modern Eighth Amendment principles are now familiar. The Cruel and Unusual Punishments Clause proscribes punishments "which, although not physically barbarous, 'involve the unnecessary and wanton infliction of pain'; or are grossly disproportionate to the severity of the crime. Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification.' " Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citations omitted). A prisoner's conditions of confinement may constitute punishment prohibited by the Eighth Amendment unless such conditions are " 'part of the penalty that criminal offenders pay for their offenses against society.' " Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (quoting Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399). Any Eighth Amendment analysis of whether prison conditions are cruel and unusual punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion); see also Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 2691, 101 L.Ed.2d 702 (1988) (plurality opinion); Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989). To avoid the imposition of a judge's subjective views, these evolving standards of decency must be informed by "objective factors to the maximum possible extent." Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (citation omitted). We are also mindful that judicial responses to conditions of confinement claims must spring from constitutional requirements " 'rather...

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