Gorman v. Moody, Civ. No. S 87-59

• Decision Date: 19 May 1989
• Docket Number: Civ. No. S 87-59,S 87-60.
• Citation: 710 F. Supp. 1256
• Parties: James GORMAN, Plaintiff, v. Darlene MOODY, Mail Room Supervisor; G. Michael Broglin, Superintendent; and John T. Shettle, Defendants. James GORMAN, Plaintiff, v. G. Michael BROGLIN, Defendant.
• Court: U.S. District Court — Northern District of Indiana

710 F. Supp. 1256

James GORMAN, Plaintiff, v. Darlene MOODY, Mail Room Supervisor; G. Michael Broglin, Superintendent; and John T. Shettle, Defendants.

James GORMAN, Plaintiff, v. G. Michael BROGLIN, Defendant.

Civ. Nos. S 87-59, S 87-60.

United States District Court, N.D. Indiana, South Bend Division.

April 13, 1989.

As Corrected May 19, 1989.

James Gorman, South Bend, Ind., pro se.

David A. Nowak, Deputy Atty. Gen., Indianapolis, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

On February 9, 1987, pro se plaintiff, James Gorman, filed this suit purporting to state a claim under 42 U.S.C. § 1983. On February 27, 1987, the defendants filed a motion to dismiss which was partially granted and partially denied pursuant to a Memorandum and Order of this court dated April 22, 1987.

On November 5, 1987, a pretrial conference was held and this court entered an order converting the defendants' motion to dismiss to a motion for summary judgment. The plaintiff was given until May 16, 1988, to respond to the defendants' motion. The plaintiff has not responded, nor has the plaintiff asked for an enlargement of time in which to answer. This matter is now ripe for ruling.

II.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Federal Rules of Civil Procedure (Fed.R.Civ.P. 56); accord Arkwright-Boston Mfg. Mutual Ins. Co. v. Wausau Paper Mills Co., 818 F.2d 591, 593 (7th Cir.1987). A material question of fact is a question which will be outcome-determinative of an issue in that case. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984).

Recently the Supreme Court of the United States took the opportunity to address Rule 56, Fed.R.Civ.P. In two cases, decided on the same day, the Court expanded the scope of the application of Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.

After Celotex it is clear that a non-moving party may not rest on its pleadings to avoid summary judgment. 106 S.Ct. at 2554. See also Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C.Cir.1987). The initial burden is on the moving party to demonstrate "`with or without supporting affidavits'" the absence of a genuine issue of material fact, and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 106 S.Ct. at 2553 (quoting Rule 56). Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts showing that there is a genuine material issue for trial.'" Id. Furthermore, in Anderson, the Court held that what facts are material in a specific case shall be determined by the substantive law controlling that case or issue. 106 S.Ct. at 2510. In addition, the Court went on to interpret Rule 56 as requiring that the courts analyze summary judgment motions utilizing the standard of proof relevant to that case or issue. Id. at 2512-2513. For recent academic insight into Celotex and Anderson, see Childress, A New Era For Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183-194 (1987). At page 194 thereof, the author states:

The recent Supreme Court cases likely require that summary judgment be more readily granted.... This emerging trend signals a new era for summary judgments, one in which the old presumptions are giving way to a policy of balancing and efficiency, and the mechanism is more appropriate to double as a sufficiency motion—allowing some sort of trial itself on the paper record.

For the judicial epilogue of Celotex, see Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C.Cir.1987). A recent object lesson applying these ideas is found in Richardson v. Penfold, 839 F.2d 392 (7th Cir.1988). For an exact and recent analysis on this subject, see Friedenthal, Cases on Summary Judgment: Has There Been a Material Change in Standards? 63 Notre Dame L.Rev. 770 (1988).

III.

A. FACTS

The plaintiff's first complaint presents the novel issue of whether an incarcerated person's Eighth and Fourteenth Amendment rights are violated when a correctional facility fails to segregate smokers from nonsmokers, and according to the plaintiff, the facility forces him "to suffer the discomfort and consequences of second-hand smoke."

The plaintiff, a lifelong nonsmoker, was incarcerated at the Westville Correctional Center (WCC) from September 13, 1984 to February 10, 1985. During the plaintiff's incarceration he had nine (9) roommates, of whom eight (8) were smokers. The plaintiff alleges that the failure of WCC to provide smoking and nonsmoking dormitories caused him to suffer physical, emotional, and mental injury.

The plaintiff's complaint requests injunctive relief, compensatory and punitive damages. As an initial matter, the plaintiff's request for injunctive relief must be denied. Under Article III of the United States Constitution, litigants may invoke the jurisdiction of the federal courts only by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). A plaintiff must demonstrate that he has "a personal stake in the outcome" in order to "assure that concrete adverseness which sharpens the presentation of issues" necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

Past exposure to illegal conduct does not "in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974). As O'Shea makes clear, standing to seek an equitable remedy depends on a showing of a "real and immediate threat of repeated injury." Id. at 496, 94 S.Ct. at 676 (emphasis added); City of Los Angeles v. Lyons, 461 U.S. 95, 110, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983); Buie v. Jones, 717 F.2d 925, 928 (4th Cir.1983). This requirement cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again. O'Shea, 414 U.S. at 502, 94 S.Ct. at 679.

The plaintiff in this case is not presently incarcerated and is, therefore, without a "personal stake in the outcome" of his challenge to the conditions at the WCC. Even if this court were to order wholesale structural changes at WCC, those changes would have no effect on the plaintiff. Even if the past conduct was illegal, the plaintiff has not alleged, nor does the record reflect, any "present, continuing, adverse effect" on the plaintiff. The plaintiff's request for injunctive relief is DENIED.

As noted earlier, this complaint raises a novel issue. Research by this court has located only one reported case¹ where a prisoner who did not have a pre-existing medical condition sued prison officials in order to compel the creation of smoking and nonsmoking areas within the prison. For the reasons set forth below, this court respectfully disagrees with the District Court of New Hampshire and finds that the plaintiff has failed to state a claim upon which relief can be granted.

B. EIGHTH AMENDMENT

The authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishments, but they made no attempt to define the contours of that prohibition. As the court in Ollman v. Evans, 750 F.2d 970, 995-996 (D.C.Cir.1984), stated:

Judges given stewardship of a constitutional provision ... whose core is known but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. There would be little need for judges—and certainly no office for a philosophy of judging—if the boundaries of every constitutional provision were self-evident.

Although the outer reaches of the Eighth Amendment have not been defined, judges have been guided by 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). In determining whether to uphold an Eighth Amendment challenge to prison conditions, courts must consider whether the totality of the circumstances violates "contemporary standards of decency." Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The individual judge must not apply his own subjective view of what is cruel and unusual. Rather, his judgment "should be informed by objective factors to the maximum possible extent." Rhodes, 452 U.S. at 352, 101 S.Ct. at 2402.

Times change, and what may not have been considered cruel and unusual punishment one hundred years ago or even twenty years ago may be so considered today. However, lawful incarceration brings about the necessary withdrawal of privileges enjoyed by society at large. Although there is no doubt that prisoners must be provided with basic human needs, Harris v. Fleming, 839 F.2d 1232 (7th Cir. 1988), and penal conditions may not "deprive inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), inmates cannot expect the "amenities, conveniences, and services of a good hotel." Harris, 839 F.2d at 1235.

The usual prisoner Eighth Amendment case involves either a prisoner upon prisoner assault or an allegation that prison officials failed to provide medical services to a prisoner. In those types of cases the "deliberate indifference"...