Pryor-El v. Kelly

Decision Date27 June 1995
Docket NumberCiv. A. No. 95-29 (CRR).
Citation892 F. Supp. 261
PartiesThomas James PRYOR-EL, Plaintiff, v. Sharon Pratt KELLY, et al., Defendants.
CourtU.S. District Court — District of Columbia

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Thomas James Pryor-El, pro se.

Jacques P. Lerner, Asst. Corp. Counsel for District of Columbia, Correctional Litigation Section, with whom Richard S. Love, Asst. Corp. Counsel, Chief, Correctional Litigation Section, and Garland Pinkston, Acting Corp. Counsel, were on the brief for defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

Before the Court in the above-entitled case is the Defendants' Motion to Dismiss, or in the alternative for Summary Judgment ("Defendants' Motion"), and the Plaintiff's Opposition thereto. Upon careful consideration of the parties' pleadings and the applicable law with respect thereto, the Court shall GRANT the Defendants' Motion to Dismiss.

I. BACKGROUND

Plaintiff, an inmate incarcerated at the Medium Security Facility of the Lorton Correctional Complex, brings the above-entitled cause of action pro se and in forma pauperis alleging that the Defendants have violated his constitutional rights in addition to District of Columbia law. Plaintiff asserts five discrete claims.1

First, Plaintiff alleges that the Defendants' actions have exposed him to unreasonable levels of Environmental Tobacco Smoke ("ETS") in violation of the Eighth Amendment bar against cruel and unusual punishment and District of Columbia law. Second, Plaintiff alleges that he was denied his Due Process rights when certain personal property of his was shipped to his home at his expense by prison officials, who, in turn, allegedly failed to provide him with an inventory of the items shipped. Plaintiff also contends that these actions violated District of Columbia law. Third, Plaintiff alleges that he has been denied an opportunity to participate in a drug treatment program in violation of the Equal Protection Clause. Fourth, Plaintiff claims that the Defendants retaliated against him because he has filed the instant Complaints by allegedly refusing to enroll him in the drug program, process his inmate grievance form properly, or transfer him to a minimum security facility. Fifth, Plaintiff claims that he was denied his Due Process rights when the Defendants allegedly failed to process his inmate grievances.

II. DISCUSSION
A. Plaintiff Fails to State a Claim upon which Relief can be Granted.

For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted, all factual allegations contained in the complaint are assumed to be true, and all doubts and ambiguities are to be resolved in the complainant's favor. Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985). Moreover, a pro se complaint must be liberally construed, granting the complainant "the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (quoting Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969)). A pro se complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); see also Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980).

1. Plaintiff's Environmental Tobacco Smoke Claim.

Plaintiff alleges that, while housed at Unit 4-C of the Medium Security Facility, he was exposed to unreasonably high levels of environmental tobacco smoke (ETS), in violation of the Eighth Amendment and D.C.Code §§ 7-100 and 8-262 sic. Complaint 94-2490. Plaintiff seeks declaratory and injunctive relief, $80,000 in compensatory damages, $40,000 in punitive damages against each of the Defendants, and free medical treatment for the rest of his life. Id. Because Plaintiff fails to state a cognizable Eighth Amendment claim, and because the Court declines to exercise its supplemental jurisdiction over Plaintiff's claims under District of Columbia law, the Court will dismiss Plaintiff's claim regarding his alleged exposure to ETS.

To state a claim under the Eighth Amendment that the right to be free from cruel and unusual punishment has been violated, an inmate complaining of prison conditions must allege facts that, if true, would satisfy both prongs of a bifurcated test. First, a plaintiff must allege that, objectively, conditions are or were serious enough to be considered cruel and unusual. Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 2323-25, 115 L.Ed.2d 271 (1991). Second, from a subjective point of view, the plaintiff must allege that the defendants acted with a sufficiently culpable state of mind. Id.

The Supreme Court analyzed an ETS claim under the Eighth Amendment in a case where an inmate brought a section 1983 action against prison officials challenging his placement with an inmate who smoked five packs of cigarettes per day. Helling v. McKinney, 509 U.S. ___, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). The inmate claimed that involuntary exposure to his cell mate's ETS created an unreasonable risk to his health, thus subjecting him to cruel and unusual punishment by jeopardizing his health. Id.

The Supreme Court declared that the objective component of an Eighth Amendment claim based upon exposure to ETS is satisfied if (1) the prisoner is being exposed to unreasonably high levels of ETS; (2) scientific and statistical evidence establishes a likelihood that an injury to the prisoner's health will be caused by the exposure; and (3) the risk of harm is so grave that it "violates contemporary standards of decency to expose anyone to such a risk." Helling, 509 U.S. at ___, 113 S.Ct. at 2482.

With regard to the subjective component of an Eighth Amendment claim, the Supreme Court observed that the prison officials' attitudes and conduct must evince "deliberate indifference" to the unreasonable risk posed by the inmate's exposure to ETS. Id. "Deliberate indifference" is the equivalent of subjective recklessness, conscious disregard of a substantial risk of serious harm. Farmer v. Brennan, ___ U.S. ___, ___- ___, 114 S.Ct. 1970, 1979-80, 128 L.Ed.2d 811 (1994). Accordingly, a prison official must actually know of and disregard an excessive risk to inmate health or safety. Id., ___ U.S. at ___-___, ___, 114 S.Ct. at 1980-82, 1984. The Helling Court noted that the plaintiff's ability to offer such proof on remand would be questionable given that the prison officials had since adopted a formal smoking policy. Helling, 509 U.S. at ___, 113 S.Ct. at 2482.

Plaintiff in the instant case fails to satisfy the objective prong of a cognizable Eighth Amendment claim. While Plaintiff states in conclusory terms that he has been exposed to "unreasonably high levels of environmental tobacco smoke which cause him to suffer from certain health ailments and which seriously threaten his future health," Complaint 94-2490 at ¶ 15, Plaintiff does not present any scientific or statistical evidence establishing a likelihood that an injury to his health will be caused by the exposure nor does he allege that the risk of harm is so grave that it "violates contemporary standards of decency to expose anyone to such a risk" or assert any factual allegations from which the Court could draw such a conclusion. Helling, 509 U.S. at ___, 113 S.Ct. at 2482; see Note, Second Hand Smoke as Cruel and Unusual Punishment: Helling v. McKinney: The Insurmountable Burden of Proof and the Role of the Court, 3 GEO. MASON IND.L.REV. 257, 272-78 (1994) (arguing that Helling imposes a standard of proof that is insurmountable because of the inherent scientific uncertainties surrounding ETS and causation).

Further, the facts of the present case are distinguishable from those in Helling. While the plaintiff in Helling was exposed to ETS constantly due to his involuntary placement with a cell mate who smoked five packs of cigarettes per day, Plaintiff does not allege any constant exposure to ETS and none of the allegations in the Complaint concern his cell. Rather, Plaintiff alleges only that various unnamed inmates and prison officials smoke "in the TV room, games room, and the letter writing room." Complaint 94-2490 at ¶ 17. These allegations do not objectively state an Eighth Amendment claim upon which relief can be granted. See McNeil v. Lane, 16 F.3d 123, 125 (7th Cir.1993) (inmate allegations of exposure to asbestos-covered pipes directly outside his cell for period over ten months did not state a cognizable Eighth Amendment claim; complaint did not allege facts sufficient to establish that he was exposed to unreasonably high levels of asbestos).

Plaintiff's Complaint also fails to satisfy the subjective prong of a cognizable Eighth Amendment claim — that the attitudes and conduct of officials evince "deliberate indifference" to the unreasonable risk to inmate health or safety. Plaintiff faces the difficulty in proving "deliberate indifference" noted in Helling because the Medium Security Facility in which Plaintiff is housed has implemented District of Columbia Department of Corrections Order 6060.1, and has promulgated Medium Security Facility Division Operations Procedure ("DOP") 6060.1 to regulate smoking at the facility.2See Defendants' Motion in 94-2770 (filed Jan. 10, 1995) at Exh. 1, 2.

Plaintiff asserts that the "defendants ... acted with a sufficiently culpable state of mind." Complaint 94-2490 at ¶¶ 20, 21. He alleges that certain of the Defendants have failed to enforce the smoking restrictions and he submits seventeen affidavits by other inmates to that effect. Complaint 94-2490 at ¶¶ 13, 14, 17, Attachments. However, these conclusory statements and vague allegations do not establish that the Defendants...

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