Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2006

Ford v. Mercer Cty Corr Ctr
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3758




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                                               NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                   Nos. 03-3758 and 03-4524


       JONETHAN FORD; GARY THOMPSON; JAMES TARVER;
       KARL REEVES; AKEEM MUTOMBO; ROBERT EDWARDS

                               v.

  MERCER COUNTY CORRECTIONAL CENTER; DENNIS CUNNINGHAM;
         ROBERT D. PRUNETTI; JOHN FARMER; J. MCCALL;
SWANSON COMMISSARY COMPANY; PREVIOUS COMMISSARY COMPANY;
  WATER MANAGEMENT COMPANY; LINDA ROGERS; PAULA PULGAR;
                 PATRICIA HUTCHINSON, DR.

                              Akeem Mutombo,
                                   Appellant


       JONETHAN FORD; GARY THOMPSON; JAMES TARVER;
       KARL REEVES; AKEEM MUTOMBO; ROBERT EDWARDS

                              v.

  MERCER COUNTY CORRECTIONAL CENTER; DENNIS CUNNINGHAM;
         ROBERT D. PRUNETTI; JOHN FARMER; J. MCCALL;
SWANSON COMMISSARY COMPANY; PREVIOUS COMMISSARY COMPANY;
  WATER MANAGEMENT COMPANY; LINDA ROGERS; PAULA PULGAR;
                 PATRICIA HUTCHINSON, DR.

                         Akeem Mutombo,
                              Appellant
                     Appeals from the United States District Court
                             for the District of New Jersey
                             (D.C. Civil No. 00-cv-01623)
                     District Judge: Honorable Freda L. Wolfson


                               Argued January 25, 2006

                Before: RENDELL and STAPLETON, Circuit Judges
                           and GILES*, District Judge

                                (Filed March 22, 2006)




David R. Fine [ARGUED]
Maria G. Macus-Bryan
Kirpatrick & Lockhart
Nicholson Graham
17 North Second Street
18 th Floor
Harrisburg, PA 17101
Counsel for Appellant


Sarah G. Crowley [ARGUED]
Kimberley M. Wilson
Office of County Counsel
County of Mercer
640 South Broad Street
McDade Administration Building
Trenton, NJ 08650
Counsel for Appellee




  *   Honorable James T. Giles, Judge of the United States District Court for the Eastern
      District of Pennsylvania, sitting by designation.

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                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       This is an appeal from the District Court’s grant of summary judgment against

Akeem Mutombo on his § 1983 claims arising out of the prison conditions he experienced

as a pretrial detainee and as an inmate incarcerated at Mercer County Correctional Center

(“MCCC”). In his pro se complaint,1 Mutombo alleged the following conditions which

violated his constitutional rights: (1) poor air quality, including the presence of airborne

asbestos, the failure of MCCC to clean its air filters and ducts, and the allowance of

cigarette smoking at MCCC, exposing him to second-hand smoke; (2) overcrowded and

unsanitary conditions; (3) polluted and unsanitary drinking water; (4) failure to provide

him with access to legal materials; (5) failure to provide him with a copy of the grievance

form he completed; and (6) retaliation. We will affirm the District Court’s grant of

summary judgment.




  1
    Also joining in the original complaint were fellow inmates Jonethan Ford, Gary
Thompson, James Tarver, Karl Reeves, and Robert Edwards. Ford, Tarver, Reeves, and
Edwards were dismissed from the action by order of the District Court on October 20,
2000. On February 15, 2001, the District Court also entered an order dismissing
Thompson for lack of prosecution. On March 26, 2002, the District Court granted
Mutombo’s motion for appointment of pro bono counsel. MCCC moved for summary
judgment on July 1, 2003.

                                              3
                                              I.

       Mutombo was held at MCCC as a pretrial detainee from August 20, 1999 until

November 17, 1999, and then as a convicted inmate from November 18, 1999 through

May 9, 2000.

       Mutombo has submitted a lengthy affidavit which, taken together with his

complaint, constitutes the major portion of the evidence presented. In these documents,

he complains of his exposure to second-hand smoke, poor air quality and lack of

ventilation. He avers that he suffered various health problems as a result,2 but provides

no record of treatment, or medical evidence regarding these conditions. He contends that

the air filters were not changed regularly and that there was a layer of dust on the light

fixtures and air filters. He avers that poor water quality caused him stomach irritation and

bowel trouble. However, he provides no quantitative or qualitative measure of these

facts, nor ties them to any specific health condition for which he has received treatment.

       Mutombo’s sole medical evidence consists of his averred account of two visits to

see a physician or nurse. On December 7, 2000, Mutombo complained of skin

discoloration and was examined by Patricia Hutchinson, who diagnosed the condition as a

fungus. On March 3, 2000, Mutombo complained of stomach problems and was again




  2
   At various points in his affidavit and complaint, Mutombo claims to have experienced
shortness of breath, diminished lung capacity, production of a black substance in his
lungs, eye irritation, light headedness, forgetfulness, a general lack of energy, and
headaches purportedly due to second-hand smoke exposure.

                                              4
examined by Ms. Hutchinson, who prescribed him an antibiotic and gave him a dandruff

shampoo to help with his skin condition.

       Beyond his affidavits, the only evidence Mutombo produced showed that MCCC’s

prison population had slightly exceeded its mandated capacity over a relatively brief

period in 1999 and had at one point permitted cigarettes to be sold from its commissary –

a practice which has since ceased. Mutombo also submitted several affidavits completed

by his fellow prisoners attesting to various physical harms allegedly resulting from their

incarceration. The prisoners complain uniformly of skin discolorations and abnormal

growths on their hands, attributing the conditions to contaminated water. None of the

prisoners has submitted medical records in support of his claimed conditions.

                                             II.

       A section 1983 claim provides redress for the infringement of constitutional rights

under color of law. 42 U.S.C. § 1983. The constitutional rights at issue in this case are

those protected by the Due Process Clause of the Fourteenth Amendment and the Eighth

Amendment’s prohibition on cruel and unusual punishment. Pretrial detainees are

protected by the Due Process Clause of the Fourteenth Amendment, which prohibits them

from being “punished prior to an adjudication of guilt in accordance with due process of

law.” Bell v. Wolfish, 

, 535 (1979). Convicted prisoners, on the other hand,

are protected from “cruel and unusual punishments” by the Eighth Amendment. Rhodes

v. Chapman, 

(1981).



                                             5
       In order to determine whether the challenged conditions of Mutombo’s pre-trial

confinement amounted to punishment without due process of law,

       [a] court must decide whether the disability is imposed for the purpose of
       punishment or whether it is but an incident of some other legitimate
       governmental purpose. Absent a showing of an expressed intent to punish on
       the part of the detention facility officials, that determination generally will turn
       on whether [it has] an alternative purpose ... and whether it appears excessive
       in relation to [that] purpose.... Thus, if a particular condition or restriction of
       pretrial detention is reasonably related to a legitimate governmental objective,
       it does not, without more, amount to "punishment." Conversely, if a restriction
       or condition is not reasonably related to a legitimate goal--if it is arbitrary or
       purposeless--a court may permissibly infer that the purpose of the
       governmental action is punishment that may not constitutionally be inflicted
       upon detainees qua detainees.

(citations, brackets, and internal quotations omitted).

       According to the Supreme Court, “confining a given number of people in a given

amount of space in such a manner as to cause them to endure genuine privations and

hardship over an extended period of time might raise serious questions under the Due

Process Clause as to whether those conditions amounted to punishment." 

Our

inquiry into whether given conditions constitute "punishment" must therefore consider the

totality of circumstances within an institution. 

.

       With respect to the period of time after Mutombo’s conviction, “the treatment a

prisoner receives in prison and the conditions under which he is confined are subject to

scrutiny under the Eighth Amendment.” Helling v. McKinney, 

, 31 (1993).

The Eighth Amendment prohibits punishment inconsistent with “evolving standards of



                                                6
decency that mark the progress of a maturing society.” Estelle v. Gamble, 

,

102 (1976) (quoting Trop v. Dulles, 

, 101 (1958)). Conditions of prison

confinement violate the Eighth Amendment only if they “deprive inmates of the minimal

civilized measure of life’s necessities.” 

. Prison officials must

“take reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer,

, 526-27 (1984). A prison official’s “deliberate indifference” to a substantial

risk of serious harm to an inmate violates the Eighth Amendment. Farmer v. Brennan,

, 828 (1994). As the Court stated in DeShaney v. Winnebago County Dept.

of Social Services, 

, 199-200 (1989),

       when the State takes a person into its custody and holds him there against his
       will, the Constitution imposes upon it a corresponding duty to assume some
       responsibility for his safety and general well being.... The rationale for this
       principle is simple enough: when the State by the affirmative exercise of its
       power so restrains an individual’s liberty that it renders him unable to care for
       himself, and at the same time fails to provide for his basic human needs– e.g.,
       food, clothing, shelter, medical care, and reasonable safety– it transgresses the
       substantive limits on state action set by the Eighth Amendment....

       In Helling, the Supreme Court determined that a cause of action exists under the

Eighth Amendment when a prisoner alleges that prison officials have exposed him, with

deliberate indifference, to levels of environmental tobacco smoke (ETS) that pose an

unreasonable risk of harm to his future health. 

; Atkinson v.

Taylor, 

, 262 (3d Cir. 2003).

       The Court established a two-part test that a plaintiff must meet to state a valid

claim under the Eighth Amendment. First, the prisoner must show that he himself is

                                              7
being exposed to unreasonably high levels of ETS. 

Second, he must show that

the prison officials were deliberately indifferent to the serious risk of harm. 

       In Helling, the Supreme Court rejected the notion that, in order to prove his Eighth

Amendment claim, a prisoner must prove that he is currently suffering serious medical

problems (or currently exhibiting symptoms) caused by exposure to ETS. 

(observing, by way of example, that an inmate could successfully bring an action to

redress demonstrably unsafe drinking water without waiting for an attack of dysentery).

The Court observed that the Eighth Amendment protects prisoners against future harm, as

well as present harm. 

Amendment “requires that inmates be furnished

with the basic human needs, one of which is reasonable safety.” 

omitted).

                                             III.

       In light of these requirements of the Fourteenth and Eighth Amendments, the

question before us is whether Mutombo has presented evidence that the conditions at

MCCC constituted punishment or an unreasonable danger to his health. Mutombo’s

allegations must be taken as true, and when his assertions conflict with those of MCCC,

the movant, the former must receive “the benefit of the doubt.” 

. Nevertheless, if Mutombo has failed to “make a showing sufficient to establish the

existence of an element essential” to his case, and on which he bears the burden of proof

at trial, we must affirm the entry of summary judgment. Celotex Corp. v. Catrett, 477



                                              

, 322 (1986). While Mutombo may rely solely on affidavits, he must “designate

specific facts showing that there is a genuine issue for trial.” 

An issue is

genuine if “the evidence is such that a reasonable jury could return a verdict for the non-

moving party.” 

. A mere “scintilla” of evidence is insufficient

to defeat a motion for summary judgment. 

       To survive summary judgment on his pre-conviction claims, Mutombo must

present evidence upon the totality of which a reasonable jury could find that the

conditions at MCCC constituted punishment, i.e., were not related to the legitimate

governmental interest in pretrial detention. To survive summary judgment on his post-

conviction claims, Mutombo must provide such evidence upon which a reasonable jury

could find that, with deliberate indifference, he was involuntarily exposed to levels of

ETS or other harm that, in fact, harmed his then-present health, or posed an unreasonable

risk of serious damage to his future health. 

. In the course of

proving the Eighth Amendment claim, he must also establish that it is contrary to current

standards of decency for anyone to be so exposed against his will – that is, that it is a risk

that today’s society chooses not to tolerate. 

       In his plea for relief from the District Court’s grant of summary judgment,

Mutombo has argued that summary judgment should not be granted because, to the extent

that Mutombo has failed to meet his burden of production, it is only as a result of the

District Court’s refusal to appoint an expert witness pursuant to Fed. R. Evid. 706.



                                              9
However, we find that the District Court did not abuse its discretion in refusing to appoint

an independent expert pursuant to Rule 706.

       Rule 706 affords the trial judge broad discretion to appoint an independent expert

answerable to the court, whether sua sponte or on the motion of a party. The policy

behind the rule is to promote the jury’s factfinding ability. See 29 Charles Allen Wright

& Victor James Gold, Federal Practice and Procedure: Evidence § 6304 (1997). “The

most important factor in favor of appointing an expert is that the case involves a complex

or esoteric subject beyond the trier-of-fact’s ability to adequately understand without

expert assistance.” 

judge does not abuse his discretion in declining to appoint

an independent expert solely to benefit a party who has otherwise failed to gather such

evidence as would suffice to overcome summary judgment. Cf. Ledford v. Sullivan,

, 359-60 (7th Cir. 1997) (finding jury could comprehend whether plaintiff’s

medical needs were “serious” without the aid of a court-appointed expert; observing, “the

symptoms which [Plaintiff] experienced were not beyond a lay person’s grasp.”); but see

Wright & Gold § 6304 (district court may properly appoint an expert witness where

plaintiff is indigent and expert is needed by trier of fact to understand complex, technical,

or esoteric subject ); McKinney v. Anderson, 

, 1510 (9th Cir. 1991);

Webster v. Sowders, 

, 1038 (6th Cir. 1988); United States Marshals Service

v. Means, 

, 1058 (8th Cir. 1984)). Here, the District Court denied

Mutombo’s motion for a court-appointed medical expert, finding that the medical issues



                                             10
presented were not so complex as to require an independent court-appointed expert. On

these facts, we will not second-guess the District Court’s judgment as to its own need for

an independent expert.

       Here, Mutombo has not provided sufficient evidence such that a reasonable jury

could conclude he was exposed to an unreasonable risk of harm or that the conditions at

MCCC were punitive. With respect to his allegations regarding overcrowded and

unsanitary conditions, failures by prison officials to provide legal materials and receipts

for grievance forms, unsanitary drinking water, and retaliation, Mutombo has not

produced evidence upon which a reasonable jury could find a constitutional violation had

occurred. That the average populations at MCCC exceeded the permissible maximum by

a small number of persons over a relatively short period of time does not rise to

overpopulation levels violating the Eighth and Fourteenth Amendments. That Mutombo

became ill after consuming water, without any other evidence, cannot alone establish that

he had, or that the water caused, a serious illness. Further, Mutombo has articulated no

basis for finding that MCCC’s failure to give him a receipt copy of grievance forms he

submitted violated his constitutional rights.

       With respect to Mutombo’s air quality claims, Mutombo has not submitted the type

of evidence upon which a jury could reasonably return a verdict in his favor. Mutombo’s

statements do not describe the conditions of his exposure in a fashion that could lead to a

reasonable jury finding that he was exposed to an unreasonable and indecent risk of harm



                                                11
or that the harm was inflicted upon him as a form of punishment. See 

(prisoner must show that the risk is so grave it violates contemporary standards of

decency to expose anyone to it unwillingly); 

n.23 (courts should

defer to government’s interest in operating pretrial detention institutions in a manageable

fashion absent substantial contrary evidence in the record). His allegations are general in

nature and provide few of the details which a fact-finder would require. Absent medical,

scientific, or other quantitative and qualitative evidence of causation and harm, a jury

could only speculate as to the ultimate issues needed to be proved at trial. In other words,

Mutombo has not presented facts upon which a reasonable jury could find that he was

subjected to an unreasonable, indecent, and uncivilized risk of harm in violation of the

Eighth Amendment or that the conditions at MCCC constituted punishment without trial

in violation of the Fourteenth Amendment’s requirement of due process.

                                            IV.

       For the foregoing reasons, we find that there is no genuine issue of material fact

and will affirm the District Court’s grant of summary judgment.

____________________________




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