Clemmons v. Bohannon

Decision Date14 February 1992
Docket NumberNo. 88-2730,88-2730
Citation956 F.2d 1523
PartiesEdward Lee CLEMMONS, Plaintiff-Appellant, v. Dale BOHANNON, Robert Tansy, Herb Maschner, and Robert Mills, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

David J. Gottlieb, University of Kansas School of Law, Lawrence, Kan., for plaintiff-appellant.

Martha M. Snyder, Asst. Atty. Gen. (Robert T. Stephan, Atty. Gen., with her on the brief), Topeka, Kan., for defendants-appellees.

Before McKAY, Chief Judge, and HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, and EBEL, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

TACHA, Circuit Judge.

This appeal arises from a suit brought by pro se plaintiff Edward Clemmons. Clemmons, 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) [Clemmons I ]. 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, Clemmons 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...

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