Filed: Oct. 12, 2004
Latest Update: Feb. 21, 2020
Summary: Ronald Bourdeau and Anthony P. Meo on brief pro se.grant of summary judgment.welfare on Wall's part.-2-, is entitled to judgment as matter of law) (citing Fed.district court.deliberate indifference to their health and welfare.state law declaring smoking to be a public nuisance.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2418
RONALD BOURDEAU, ET AL.,
Plaintiffs, Appellants,
v.
A. T. WALL, RIDOC DIRECTOR,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Ronald Bourdeau and Anthony P. Meo on brief pro se.
Patrick C. Lynch, Attorney General, and Thomas A. Palombo,
Assistant Attorney General on Memorandum in Support of Motion for
Summary Disposition.
October 12, 2004
Per Curiam. Appellants Anthony Meo and Ronald
Bourdeau, inmates at the Adult Correctional Institution in
Rhode Island, appeal from the district court's grant of summary
judgment in favor of Ashbel T. Wall, Director of the Rhode
Island Department of Corrections. By order dated October 8,
2003, the district court accepted the September 11, 2003 Report
and Recommendation of a magistrate judge, recommending the
grant of summary judgment. We affirm, agreeing substantially
with the reasoning in the Report that the undisputed facts
showed no deliberate indifference to appellants' health and
welfare on Wall's part. Some months after appellants filed
their complaint asserting that they were being injured by
environmental tobacco smoke at the prison, Wall announced a new
policy that would totally ban the use of tobacco products at
the prison as of February 2003. Moreover, as long ago as
October 1999, he had authorized an investigation into the
possibility of totally banning such products.
In the following, we briefly address the appellants'
arguments directed to this issue. Our appellate standard is
well-known. Rosen Construction Ventures, Inc. v. Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C.,
364 F.3d 399, 404 (1st
Cir. 2004) (court reviews grant of summary judgment de novo and
summary judgment is proper where the record discloses "no
genuine issue as to any material fact and that the moving party
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is entitled to judgment as matter of law") (citing Fed. R. Civ.
P. 56(c)).
1. Appellants dispute certain facts, which were
included in Wall's statement of undisputed facts to the
district court. They also claim that Wall's failure to respond
to certain grievances they filed in the fall of 2001 regarding
the environmental tobacco smoke in their unit shows his
deliberate indifference to their health and welfare. But they
fail to elaborate adequately on either argument, and we have
found nothing in the record that would suggest that Wall was
deliberately indifferent to their medical or health needs.
2. Appellants contend that the district court
erroneously admitted evidence that Wall had promulgated a total
ban on the use of tobacco products at the prison, effective
February 3, 2003. But the rule of evidence they cite is not
applicable since Wall offered that evidence to show that he was
not culpable as alleged. See Fed. R. Evid. 407, 1972 Adv.
Comm. Notes ("Exclusion is called for only when the evidence of
subsequent remedial measures is offered as proof of negligence
or culpable conduct.")
3. Appellants assert that Wall knowingly violated
state law declaring smoking to be a public nuisance. See R.I.
Gen. Laws ยง 23-20.6-1 and .6-2. But his total ban on the use
of tobacco at the prison was consistent with that law, as was
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the earlier more limited restriction on smoking which became
effective in 1995 while he was Assistant Director for
Administration.
Affirmed.
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