CHARLES S. COODY, Magistrate Judge.
In this 42 U.S.C. § 1983 action, Eddie Lee Foster ("Foster), a state inmate, alleges that correctional officials violated his constitutional rights by allowing his exposure to unreasonable levels of environmental tobacco smoke ("ETS") during a prior stint of incarceration at the Bullock Correctional Facility ("Bullock").
The defendants filed a special report, supplemental special reports and supporting evidentiary materials addressing in response to the complaint. Pursuant to the orders entered in this case, the court deems it appropriate to construe these reports as a motion for summary judgment. Order of August 27, 2013 — Doc. No. 20. Upon consideration of this motion, the evidentiary materials filed in support thereof and the plaintiff's responses in opposition to the motion, the court concludes that the defendants' motion for summary judgment is due to be granted.
"Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(a) ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.").
The defendants assert that they have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact with respect to the claims presented by the plaintiff. The burden therefore shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact by [citing to materials in the record including affidavits, relevant documents or other materials] the court may ... grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it."); Jeffery, 64 F.3d at 593-594 (internal quotation marks omitted) (Once the moving party meets its burden, "the non-moving party must then go beyond the pleadings, and by its own affidavits [or statements made under penalty of perjury], or by depositions, answers to interrogatories, and admissions on file," demonstrate that there is a genuine dispute of material fact.). This court will also consider "specific facts" pled in a plaintiff's sworn complaint when considering his opposition to summary judgment. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Public Education for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007).
To proceed beyond the summary judgment stage, an inmate-plaintiff is required to produce "sufficient [favorable] evidence" which would be admissible at trial supporting his claims of constitutional violations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e), Federal Rules of Civil Procedure. "If the evidence [on which the nonmoving party relies] is merely colorable ... or is not significantly probative ... summary judgment may be granted." Anderson, 477 U.S. at 249-250. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (A plaintiff's "conclusory assertions ..., in the absence of [admissible] supporting evidence, are insufficient to withstand summary judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (grant of summary judgment appropriate where inmate produces nothing beyond "his own conclusory allegations" challenging actions of the defendants); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) ("Mere verification of party's own conclusory allegations is not sufficient to oppose summary judgment."); Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) ("[C]onclusory allegations without specific supporting facts have no probative value."). Hence, when a plaintiff fails to set forth specific facts supported by requisite evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any part of the prima facie case the plaintiff presents insufficient evidence to require submission of the case to the trier of fact, granting of summary judgment is appropriate.); Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (summary judgment appropriate where no genuine dispute of material fact exists). At the summary judgment stage, this court must "consider all evidence in the record ... [including] pleadings, depositions, interrogatories, affidavits, etc. — and can only grant summary judgment if everything in the record demonstrates that no genuine [dispute] of material fact exists." Strickland v. Norfolk Southern Railway Co., 692 F.3d 1151, 1154 (11th Cir. 2012).
For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami, Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). To demonstrate a genuine dispute of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine [dispute] for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates there is no genuine dispute of material fact and the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show no genuine dispute as to a requisite material fact); Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (To establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor.).
Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. Beard v. Banks, 548 U.S. 521, 525, 126 S.Ct. 2572, 2576 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case.
The court has undertaken a thorough and exhaustive review of all the evidence contained in the record. After such review, the court finds that Foster has failed to demonstrate a genuine dispute of material fact in order to preclude entry of summary judgment in favor of the defendants.
To the extent Foster lodges claims against the defendants in their official capacities, they are entitled to absolute immunity from monetary damages. Official capacity lawsuits are "in all respects other than name, ... treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). "A state official may not be sued in his official capacity unless the state has waived its Eleventh Amendment immunity, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state's immunity, see Seminole Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996). Alabama has not waived its Eleventh Amendment immunity, see Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (citations omitted), and Congress has not abrogated Alabama's immunity. Therefore, Alabama state officials are immune from claims brought against them in their official capacities." Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11th Cir. 1997).
In light of the foregoing and under the facts of this case, the defendants are entitled to sovereign immunity under the Eleventh Amendment for claims seeking monetary damages from them in their official capacities. Lancaster, 116 F.3d at 1429; Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998) (state officials sued in their official capacities are protected from suit for damages under the Eleventh Amendment); Edwards v. Wallace Community College, 49 F.3d 1517, 1524 (11th Cir. 1995) (damages are unavailable from state official sued in his official capacity).
Foster complains that the defendants failed to protect him from exposure to harmful levels of ETS. "The Eighth Amendment governs `the treatment a prisoner receives in prison and the conditions under which he is confined.' Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)." Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005 (per curiam). Correctional officials may be held liable under the Constitution for acting with "deliberate indifference" to an inmate's health or safety when the official knows that the inmate faces "a substantial risk of serious harm" and with such knowledge disregards that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 828 (1994). A constitutional violation occurs only when a plaintiff establishes the existence of "a substantial risk of serious harm, of which the official is subjectively aware, ... and [that] the official does not respond[] reasonably to the risk'...." Marsh v. Butler County, 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc), quoting Farmer, 511 U.S. at 844. Thus, in order to survive summary judgment on this claim, Foster is "required to produce sufficient evidence of (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation. LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1189, 127 L.Ed.2d 539 1994)." Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995).
Roberts v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003); Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (To establish that a prison official acted with deliberate indifference, "the prisoner must prove three facts: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by conduct that is more than mere negligence.").
Kelley, 400 F.3d at 1284.
Winkels v. Morales, 2012 WL 3598851, at *5 (S.D. Ga. July 25, 2012), Report and Recommendation adopted, 2012 WL 3597659 (S.D. Ga. Aug. 20, 2012).
In this case, Foster alleges he suffered damage to his respiratory system and obstructive sleep apnea
It is undisputed that the Alabama Department of Corrections adopted a smoke free policy in December of 2004 applicable to the Bullock Correctional Facility. Defendants' Exh. 1 to the Second Supplemental Special Report (Admin. Reg. No. 009) — Doc. No. 37-1 at 11-13. This policy strictly prohibited the "use of tobacco products that produce smoke... [i]nside all ADOC buildings and institutions." Id. at 11. The smoking prohibition included all inside rooms, elevators and ADOC vehicles. Id. at 12. The policy permitted smoking outside at "designated smoking areas ... not ... closer than ten (10) feet from the entrance of the building/institution." "The designated smoking area for [general population] inmates [at Bullock is] on the inmate exercise yard." Standard Operating Procedure for Bullock — Doc. No. 37-1 at 9. Because correctional officials did not designate Bullock as a tobacco-free facility, i.e., no tobacco products permitted anywhere on the premises, but merely a smoke-free facility, inmates could purchase tobacco products from the prison canteen for use in authorized smoking areas.
In his initial affidavit, defendant Jones addresses Foster's claims as follows:
Defendants' Exh. 3 to the Special Report — Doc. No. 19-4 at 1-2. Defendant Giles maintains that:
Defendants' Exh. 4 to the Special Report — Doc. No. 19-5 at 1-2.
In a subsequent affidavit, defendant Jones further addresses the claims presented by Foster as follows:
Defendants' Exh. 1 to the Third Special Report — Doc. No. 43-1 at 1-2; Defendants' Exh. 2 to the Third Special Report — Doc. No. 43-2 at 1-2 (same). The maintenance supervisor, who has worked at Bullock for twenty-nine years stated, in pertinent part, that "[t]he exhaust fans in the dorms at Bullock are operable now and would have been operable in 2013 and as long as I can remember before that. [The maintenance crew members] maintain them, as needed.... If the exhausts become inoperable for any reason, [the maintenance] crew makes immediate repair of the exhaust fans a priority.... There is no dorm or area of the dorms that would have been without exhaust fans for any significant length of time — just long enough to make the repair.... [T]here are large floor fans that move air in all the dorms. I know that the exhaust fans and the floor fans actually move the air. I am often personally in those dorms supervising my crew or working on maintenance issues. I can feel the air movement and I also can see the effect of the fans because the suction effect of the fans causes doors in the prison facility to swing closed. The windows in the dorms can also have been raised to help move air if necessary. What I have described above would have been just as true in — and before as it is currently." Defendants' Exh. 4 to the Third Special Report — Doc. No. 43-4 at 1-2.
Regarding the objective component of the deliberate indifference standard, Foster has come forward with little more than his own averment and that of another inmate that inmates smoked in the dorms at Bullock, Doc. No. 21-1 and Doc. No. 21-3, and the affidavit of inmate Craig Brooks, Doc. No. 21-2, that he occasionally smoked in the dorm in which Foster was housed. These general assertions provide no indication as to the levels or frequency of Foster's exposure to ETS since June of —. See Kelley, 400 F.3d at 1285 (finding plaintiff did not satisfy the objective prong by alleging that "other inmates in his pod smoked inside the facility and that the ventilation was insufficient.").
Foster's medical condition is also relevant to this court's analysis of the objective element. As noted, Foster suffers from Obstructive Sleep Apnea. The medical records, however, are devoid of evidence which would be admissible at trial to show a causal connection between this condition and Foster's exposure to ETS.
The no smoking policy in effect at Bullock during the period of time relevant to the instant complaint also plays a part in the determination of whether Foster can satisfy the objective prong of his ETS claim. The evidence uniformly shows that rules and regulations adopted by the ADOC in 2004 prohibit smoking in any building within its prison facilities, including the dormitories at Bullock. Foster makes the self-serving, conclusory allegation that the defendants failed to enforce the rules prohibiting smoking in the dorms. The defendants adamantly deny this assertion and maintain that violators of the no smoking policy routinely received behavior citations and/or disciplinaries for smoking in unauthorized areas. The evidence presented by Foster does not refute the fact that prison officials, including the defendants, enforced the indoor smoking ban at Bullock; rather, this evidence merely suggests that the policy did not eliminate ETS from the prison as inmates chose to violate the institutional rule prohibiting smoking in the dorms. One such inmate. Craig Brooks, provided an affidavit for use by Foster in this case. Interestingly, despite knowledge that inmate Brooks routinely smoked in the dorms, Foster did not report these violations to prison officials so that disciplinary action could be taken against inmate Brooks. Moreover, the adoption of a no smoking policy "bear[s] heavily on the inquiry into deliberate indifference," Helling, 509 U.S. at 36, 113 S.Ct. at 2475, and "militates against a finding of deliberate indifference" when correctional officials undertake good faith efforts to enforce the policy. Scott v. District of Columbia, 139 F.3d 940, 944 (D.C. Cir. 1998).
The evidence presented by Foster is insufficient to establish the objective prong of his deliberate indifference claim. Although the no smoking policy does not totally negate the possibility that Foster was exposed to ETS, the court finds that the fact that a no smoking policy existed and correctional officials enforced this policy to the best of their abilities reduces the likelihood that Foster was exposed to unreasonably high levels of ETS. See Kelley, 400 F.3d at 1284 (finding plaintiff failed to establish the objective prong, in part, because "the facility had a no-smoking policy in place and that any inmate caught smoking inside would be disciplined."). The evidence presented by Foster that the policy did not completely eradicate indoor smoking does not alter this finding.
Even if Foster could satisfy the objective component of his deliberate indifference claim, this claim nevertheless fails on the subjective prong. Other than a letter Foster addressed to the defendants in October of 2012 complaining of his exposure to ETS in Dorm K-3 and seeking issuance of an order that smoking in the "dorm area be halted[,]" Doc. No. 21-4, there is no evidence that the defendants were personally aware that Foster was exposed to unreasonably high levels of ETS while at Bullock or that his exposure to ETS caused or exacerbated a health issue. Specifically, the letter does not indicate that it was received by either defendant and the defendants deny any knowledge of the information contained in the letter or other information that Foster was at substantial risk of harm from excessive levels of ETS. Additionally, an exhaustive review of the medical records submitted in this case reveals that Foster made no mention of exposure to ETS in his requests for treatment from health care personnel. Finally, Foster does not allege nor is there anything in the record to indicate that he reported any inmate for violating the no smoking policy, despite his protestations that inmates were always smoking inside the facility. The aforementioned actions undermine Foster's assertion that he was continually exposed to unreasonably high levels of ETS.
As previously referenced, the adoption of a no smoking policy "bear[s] heavily on the inquiry into deliberate indifference." Helling, 509 U.S. at 36. In this case, the defendants have shown that in 2004 the ADOC adopted a policy which prohibited smoking in all correctional facilities. As explained above, the defendants have shown that prison officials enforced this policy at Bullock by issuing behavior citations or disciplinaries to inmates caught smoking in unauthorized areas, including the dorms. At most, the evidence submitted by Foster shows imperfect enforcement of the no smoking policy, which under the facts of this case is insufficient to establish deliberate indifference. See Kelley, 400 F.3d at 1284 (finding plaintiff failed to show deliberate indifference because he had only shown that certain prison officials "were negligent in enforcing the nonsmoking policy"); see also Scott, 139 F.3d at 944 ("[I]t is hard to see how imperfect enforcement of a nonsmoking policy can, alone, satisfy Helling's subjective element.").
Finally, the Court rejects Foster's contention that the defendants violated his Eighth Amendment rights by simply allowing inmates to purchase tobacco products from the prison canteen. The notion that correctional officials could be held liable for merely allowing inmates to purchase tobacco products is plainly at odds with the governing case law, which requires a plaintiff to establish both the objective and subjective elements in order to prevail on an Eighth Amendment ETS claim.
The record is completely devoid of evidence that the defendants had knowledge of specific facts from which an inference could be drawn that a substantial risk of harm existed to Foster due to exposure to unreasonable high levels of ETS nor is there any evidence that the defendants actually drew this inference and thereafter ignored the attendant risk of harm. Consequently, Foster likewise fails to establish the requisite element of subjective awareness on the part of the defendants.
In light of the foregoing, the court concludes that summary judgment is due to be granted in favor of the defendants as Foster fails to satisfy each of the requisite elements of his Eighth Amendment claim.
To the extent Foster asserts that the actions of the defendants violated state law, review of this claim is appropriate only upon utilization of this court's supplemental jurisdiction.
For a federal court "[t]o exercise [supplemental] jurisdiction over state law claims not otherwise cognizable in federal court, `the court must have jurisdiction over a substantial federal claim and the federal and state claims must derive from a "common nucleus of operative fact."'" L.A. Draper and Son v. Wheelabrator Frye, Inc., 735 F.2d 414, 427 (11th Cir. 1984). The exercise of supplemental jurisdiction is completely discretionary. United Mine Workers v. Gibbs, 383 U.S. 715 (1966). "If the federal claims are dismissed prior to trial, Gibbs strongly encourages or even requires dismissal of the state claims." L.A. Draper and Son, 735 F.2d at 428. In view of this court's resolution of the federal claims presented in the complaint, Foster's pendent state claim is due to be dismissed without prejudice. Gibbs, 383 U.S. at 726 (if the federal claims are dismissed prior to trial, the state claims should be dismissed as well); see also Ray v. Tennessee Valley Authority, 677 F.2d 818 (11th Cir. 1982).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
It is further
ORDERED that
