Oliver v. Deen

• Citation: 77 F.3d 156
• Decision Date: 22 February 1996
• Docket Number: No. 94-4012,94-4012
• Parties: Harold OLIVER, Plaintiff-Appellant, v. Kent DEEN, Francis Melvin, and Richard Gramley, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 156

77 F.3d 156

Harold OLIVER, Plaintiff-Appellant, v. Kent DEEN, Francis Melvin, and Richard Gramley, Defendants-Appellees.

No. 94-4012.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1995.

Decided Feb. 22, 1996.

George N. Leighton (argued), Neal & Associates, Chicago, IL, for Harold Oliver.

David R. Moreland, Office of Attorney General, Criminal Appeals Division, Springfield, IL, Daniel N. Malato, Cacilia R. Masover (argued), Office of Attorney General, Civil Appeals Division, Chicago, IL, for Kent Deen, Acting Sergeant, Francis Melvin, Superintendent, Richard B. Gramley, Warden.

Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

The role of the federal courts in regard to conditions of confinement in state prisons is an uneasy one. Conditions in prisons in Arkansas, Alabama, and Mississippi led federal judges in the late 1960's to forge legal tools to alleviate deplorable, almost unimaginable situations. From a pioneering attempt to protect inmates, who, for instance, because they feared forcible sexual violence and stabbings spent nights clinging to the bars, ¹ a body of law has emerged in which inmates sue their keepers for countless alleged deprivations, ranging from being maced to complaints about the kind of music piped into cellblocks. The improvement of many of the conditions of which prisoners complain would, in the view of some, constitute enlightened policy. But that's not the issue. The issue for the federal courts is, of course, determining the level of deprivation which can reasonably be said to implicate the Constitution and thus become the business of a federal judge. Drawing some hard lines is very important, not just for the courts but, in the long run, for the prisoners also. The number of suits has proliferated to the point that both Congress ² and the courts have begun to look for ways to curb--or even eliminate--prison litigation. The more federal courts intrude themselves into the prisons on minor matters, the more likely they are to be evicted altogether, leaving prisoners to the extremes of the political climate.

Trends outside prisons influence the claims brought by prisoners. In prison, as outside, the debate on the effects of "environmental tobacco smoke," or ETS, goes on. Rights collide. One person's right is another's deprivation. The harmful effects of smoking seem clear to a large proportion of the population. But people continue to smoke; tobacco companies continue to vigorously promote their products. The debate continues outside and inside the walls.

Prison officials all over the country have struggled to accommodate the growing evidence that ETS is harmful and may subject them to liability. It hasn't always been easy. For instance, news reports indicate that on March 1, 1995, the state of Texas instituted an anti-smoking policy in its prisons, including death row. Several county jails in Texas followed suit. Then other news reports on August 15, 1995, indicated that the ban at one county jail was being lifted because it caused many problems: inmates reportedly were smoking dried orange and apple peelings and sneaking cigarettes into jail by placing them in hollowed-out Bibles, raising the price of a pack of cigarettes on the prison black market to $70. This is not an easy issue, though the recommendation that to the extent possible prisons provide smoking and nonsmoking areas seems to be a reasonable one. ³

This case--as mundane as it is--is close to the intersection of these important issues. In addition, it highlights the tension between resolution of cases on the basis of summary judgment, rather than trial.

Illinois state prison inmate Harold Oliver filed this civil rights action pro se in the United States District Court for the Central District of Illinois. When he filed the suit he was in protective custody at the Pontiac Correctional Center, an Illinois maximum security prison where he was housed from February 1993 until January 1994. He sued Kent Deen, who was in charge of his unit; Francis Melvin, the superintendent of the north cellhouse; and Richard Gramley, the warden. He contends that these officials violated his Eighth Amendment rights by their deliberate indifference to his serious medical needs: that is, he suffers from asthma which is made worse when he is celled with an inmate who smokes. His condition, he says, causes wheezing, shortness of breath, dizziness, and, at times, nausea. He says that despite his condition the prison officials housed him with smokers, and for these alleged wrongs he seeks damages.

The district court granted summary judgment for the prison officials on the basis that they did not ignore a serious medical need nor did Mr. Oliver show that they possessed a subjective intent to expose him to a substantial risk of danger. In his appeal, in which he is represented by very able appointed counsel, he questions whether summary judgment was appropriate in this circumstance. Mr. Oliver contends that there are genuine issues of material fact in the record, requiring that the order granting summary judgment be set aside.

Summary judgment is appropriate when there are no genuine disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Roger v. Yellow Freight Systems, Inc., 21 F.3d 146 (7th Cir.1994). To successfully resist a motion for summary judgment, the party against whom summary judgment is sought must demonstrate, by competent evidence, that a genuine issue of fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "Summary judgment will not be defeated simply because motive or intent are involved." Roger, at 148.

We review de novo the decision granting summary judgment. Jackson v. Bunge Corp., 40 F.3d 239 (7th Cir.1994). Here, then, are the facts, viewed favorably to Mr. Oliver.

Mr. Oliver's medical records show that he was a "mild asthmatic." In the prison system he has been given medication, Theophylline and a Netatroterenol inhaler, to help him cope with his condition. In his affidavit the prison doctor, Owen Murray, said, "While asthma can be a serious medical problem, Mr. Oliver's condition was only mild and never life-threatening. His condition required no outside hospitalization."

There is no other medical evidence in the record. Mr. Oliver presented, however, the affidavits of fellow inmates, ⁴ who relate their observations of his condition. The inmates say that Mr. Oliver had difficulty breathing, had chest pains, wheezed, and had, as one inmate put it, "other common symptoms of an 'Asthma Attack' occurring."

Pontiac is not the first Illinois prison in which Mr. Oliver has resided. At other penitentiaries his asthmatic condition was known. A doctor at the prison at Menard, he says, gave instructions that he should have a cellmate who did not smoke. The same was true at other prisons.

Shortly after Mr. Oliver arrived at Pontiac, the medical records officer issued a memorandum, in which he said that Dr. Murray had issued a medical order "that he is to be celled only with a non-smoking cellmate." In a separate memorandum to Mr. Oliver, Dr. Murray advised him that he had been issued a "permit" for a nonsmoking cellmate.

Mr. Oliver was at Pontiac for a little less than a year. For approximately 133 days during that time, he had cellmates who smoked. For approximately 28 days he shared his cell with non-smokers. Much of the time Mr. Oliver had no cellmate--for at least 164 days in 1993, plus whatever time he served in January 1994.

The Eighth Amendment prohibits punishments which are incompatible with "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Prison officials must ensure that inmates receive adequate food, clothing, shelter, protection, and medical care. That adequate medical care falls under the ambit of the amendment has been clear since Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). What has also been clear since Estelle is that with regard to medical care, not every denial violates the Constitution. Estelle prohibits "deliberate indifference to serious medical needs." Medical malpractice, for instance, is not a violation of the amendment. As the Court stated,

[A]n inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind."

At 106-107, 97 S.Ct. at 292.

The Supreme Court has recently made clear that in Eighth Amendment cases a constitutional violation has two components.

Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, "sufficiently serious," [citations omitted]; a prison official's act or omission must result in the denial of 'the minimal civilized measure of life's necessities.

....

The second requirement follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment" ... To violate the Cruel and Unusual Punishments Clause, a prison official must have a "sufficiently culpable state of mind."

Farmer v. Brennan, --- U.S. ----, ----, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994).

We believe the undisputed facts demonstrate that Mr. Oliver has not satisfied the first element; he has not demonstrated that he has a serious medical need or that he has been denied "the minimal civilized measure of life's necessities."

In determining whether summary judgment is appropriate, we must first clearly understand what Mr. Oliver is claiming. He does not seek injunctive relief. Therefore, this is not a case like Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993),...