KAREN L. HAYES, Magistrate Judge.
Before the court is a motion for summary judgment [doc. # 30] filed by defendant Antonio Johnson. Pursuant to Standing Order 3.311 and 28 U.S.C. § 636(b)(1)(B), the District Court referred the motion to the undersigned magistrate judge for report and recommendation. For reasons explained below, it is recommended that the motion for summary judgment be DENIED, and that the matter be referred to the assigned magistrate judge for an evidentiary hearing.
On March 5, 2013, Lawrence Williams, an inmate in the custody of Louisiana's Department of Public Safety and Corrections ("LDOC"), filed the instant pro se civil rights complaint under 42 U.S.C. § 1983 against Major Antonio Johnson, a high-ranking officer at the Madison Parish Detention Center ("MPDC") where Williams is currently housed. Williams complains that he is exposed to unreasonable levels of environmental/second hand tobacco smoke ("ETS") at the MPDC facility. He sued Major Antonio Johnson requesting an immediate transfer to a non-smoking facility, plus compensatory damages for the injury he sustained as a result of his ETS exposure.
On August 5, 2013, the court determined that plaintiff sufficiently pleaded a cause of action, and ordered service on the sole named defendant. (Aug. 5, 2013, Mem. Order [doc. # 20]). Johnson answered plaintiff's complaint on November 18, 2013. [doc. # 27]. After the close of discovery, Johnson filed the instant motion for summary judgment [doc. # 30]. Following delays for briefing, the matter is now before the court.
Summary judgment is appropriate when the evidence before the Court shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(a). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2511 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). "The moving party may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that the record contains no support for the non-moving party's claim." Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the nonmovant is unable to identify anything in the record to support its claim, summary judgment is appropriate. Id.
In evaluating the evidence tendered by the parties, the court must accept the evidence of the non-movant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255. "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3) (emphasis added). While courts will "resolve factual controversies in favor of the nonmoving party," an actual controversy exists only "when both parties have submitted evidence of contradictory facts." Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). There can be no genuine issue as to a material fact when a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322-23. This is true "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
When a movant bears the burden of proof on an issue, it must establish "beyond peradventure
Johnson contends that 1) plaintiff failed to exhaust available administrative remedies before filing suit; and 2) plaintiff's allegations do not rise to a level sufficient to support a constitutional violation. The court will address defendant's arguments in turn.
Pursuant to 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title or any other Federal law by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is mandatory, and is required even where the relief sought cannot be granted by the administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 2382-83 (2006) (citations omitted). All "available" remedies must be exhausted, whether speedy and effective, or not. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 988 (2002). "Proper exhaustion requires that the prisoner not only pursue all available avenues of relief but also comply with all administrative deadlines and procedural rules." Johnson v. Kukua, 342 Fed. Appx. 933, 934 (5
Under Louisiana law, the Department of Public Safety and Corrections and each sheriff is authorized to adopt an administrative remedy procedure at each of their institutions. La. R.S. § 15:1171. The administrative remedy procedure is intended to resolve complaints and grievances that arise while the offender is in the custody of, or under the supervision of the department or sheriff. Id. The procedure encompasses complaints and grievances for monetary, injunctive, declaratory, or other relief stemming inter alia from conditions of confinement, personal injuries, and medical malpractice. Id. These administrative procedures, when promulgated, provide the offender's exclusive remedy — to the extent that federal law permits. Id. Finally, "status as an `offender' is determined as of the time the basis for a complaint or grievance arises. Subsequent events, including posttrial judicial action or release from custody, shall not affect status as an `offender' . . ." La. R.S. 15:1171(D).
In support of his motion for summary judgment, Johnson adduced an unauthenticated copy of a document entitled "Administrative Remedy Procedure," ("ARP") which he suggests was in effect at the MPDC during the relevant period. See MSJ, Memo, pgs. 3-4, MSJ, Exh. A. The otherwise unidentified ARP purports to establish a three-step grievance procedure that must be completed within a 90 period. Id.
Johnson did not adduce any affirmative evidence to establish that Williams did not comply with the grievance process. Rather, Johnson emphasizes that Williams failed to allege in his complaint and deposition that he had exhausted his administrative remedies. However, "failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 921 (2007). In any event, however, Williams did allege in his complaint that he exhausted all three steps of the ARP. (Compl., pg. 3). He also testified at his deposition that he exhausted every step of the ARP. (Williams Depo., pgs. 10-11; MSJ, Exh. D). Finally, in response to defendant's discovery requests, Williams adduced copies of three grievances wherein he purported to grieve his ETS claim over a three month period from October-December 2012. See doc. # 29.
In sum, the court finds that defendant has not established beyond peradventure that plaintiff has failed to exhaust available administrative remedies.
In Helling v. McKinney, the Supreme Court held that prison officials may violate the Eighth Amendment's prohibition against cruel and unusual punishment by exposing inmates to excessive levels of ETS. Helling v. McKinney, 509 U.S. 25, 33-35, 113 S.Ct. 2475, 2481-482 (1993) (emphasis added). The Court also formalized a "two-prong test" to determine whether an inmate's exposure to ETS resulted in a transgression of constitutional proportions. See Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001) (citing Helling, supra). "First, a prisoner must prove objectively that he is "being exposed to unreasonably high levels of ETS. . ." Id. (emphasis in original). Second, the prisoner must show that prison authorities were deliberately indifferent to his plight — the subjective component. Id.
Under Helling's objective prong,
Helling, supra. (emphasis in original).
As an initial matter, since August 15, 2009, Louisiana, via the Louisiana Smokefree Air Act, has banned smoking in public facilities, including any state, local, or private correctional facility. La. R.S. 40:1300.256(B)(14). In so doing, the legislature found and determined that
La. R. S. § 40:1300.252.
The Louisiana Smokefree Air Act evidences society's increasing intolerance to ETS. Furthermore, in a June 2006 report, the United States Surgeon General concluded that there are no safe levels of exposure to second hand smoke.
Here, Williams declared under penalty of perjury that he has been incarcerated at the MPDC since May 2012, and forced to inhale second hand smoke 24 hours per day. (Decl. of L. Williams [doc. # 6]). Furthermore, he is not scheduled to be released until 2022. (Williams Depo., pg. 6; Def. MSJ, Exh. D). Williams also testified that out of the 120 or so inmates in his dormitory, approximately 110 of them smoke in the bunk areas and in the television room. Id., pgs. 11-12. At any one time, approximately one-half of the inmates in the dormitory are smoking. Id., pg. 14. Williams further explained that smoke was present in the dormitory every day. Id., pg. 13. The ETS exposure has caused Williams to suffer watering and itchy eyes, sinus problems, and dizziness. Id., pg. 9. Williams fears that continued exposure will more significantly impact his health. Id.
Upon consideration of the foregoing, the undersigned finds that plaintiff has adduced evidence sufficient to create a genuine dispute of material fact regarding the objective component of the Helling test, i.e. whether he was exposed to unreasonably high levels of ETS.
To satisfy Helling's second, or subjective, prong, the plaintiff must show that prison officials were deliberately indifferent to his plight. Helling, supra. "[D]eliberate indifference requires a finding of `obduracy and wantonness, not inadvertence or error in good faith.'" Callicutt v. Anderson, 48 Fed. Appx. 916, *2 (5th Cir. Sept. 11, 2002) (unpubl.) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Furthermore,
Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
In evaluating deliberate indifference to ETS, the court should consider factors such as the adoption of a smoking policy, the administration of that policy, and the realities of prison administration. Callicutt, supra (citing Helling, 509 U.S. at 36-37).
In this case, Johnson adduced evidence that, in compliance with the State of Louisiana Department of Public Safety Corrections Field Operations Manual, the MPDC prohibits smoking inside of public buildings, and outdoors by inmates between sunset and sunrise. (Aff. of Antonio Johnson; MSJ, Exh. B). Johnson further averred that the MPDC enforces the foregoing policy. Id.
Williams, of course, submitted evidence that the MPDC does not enforce the state's prohibition against smoking inside of buildings. See discussion, supra. Furthermore, Williams stated that in May 2012, he wrote several requests to Major Antonio Johnson asking to be moved to a smoke-free dormitory, or to a facility that does not allow smoking in the dormitories. (Williams Decl. [doc. # 6]). In January, 2013, Williams advised Johnson that he was a nonsmoker, and that second-hand smoke was endangering his health. Id. Johnson, however, still refused to transfer him. Id.
In a grievance dated December 12, 2012, Williams wrote to Johnson that he continued to experience severe sinus trouble and difficulty breathing as a result of exposure to second hand smoke. (Inmate Request Form [doc. # 28]). He also questioned why the correctional officers were not enforcing the smoking rules. Id.
Construing the foregoing evidence in the light most favorable to the non-movant, the undersigned finds that plaintiff has created a genuine dispute as to whether Major Johnson was deliberately indifferent to Williams' exposure to ETS. Although Johnson stated that the MPDC complies with the State's policy against smoking in buildings, plaintiff declared under penalty of perjury and/or oath that the MPDC is not enforcing that policy, and that he has brought the issue to the attention of Major Johnson, to no avail.
For the above-assigned reasons,
IT IS RECOMMENDED that the motion for summary judgment [doc. # 30] filed by defendant Antonio Johnson be DENIED.
IT IS FURTHER RECOMMENDED that the matter be referred to the assigned magistrate judge to hold an evidentiary hearing (to include all witnesses and evidence to be presented by all parties), and thereafter, to issue findings to the court, via report and recommendation.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and F.R.C.P. Rule 72(b), the parties have
THUS DONE AND SIGNED.
