Cassady v. Walker et al, No. 1:2009cv00128 - Document 119 (S.D. Ga. 2014)
Court Description: ORDER denying 109 Motion for Summary Judgment. This case will proceed to trial. Signed by Judge J. Randal Hall on 03/31/2014. (thb)
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Cassady v. Walker et al Doc. 119 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION DAVID DWAYNE CASSADY, * Plaintiff, * * v. * CV 109-128 • VICTOR L. WALKER, Warden; SCOTT * WILKES, Deputy Warden; and VERNEAL S. EVANS, Captain, * * Defendants. * ORDER Presently Walker, pending Scott Wilkes, before the and Verneal motion for summary judgment. forth below, Defendants' Court S. (Doc. is Evans's no. 109.) Augusta State Dwayne Medical ("Defendants") L. second For the reasons set BACKGROUND This case, brought pursuant to 42 U.S.C. David Victor motion is DENIED. I. Plaintiff Defendants Cassady's Prison § 1983, ("Plaintiff") ("ASMP") in arises out of incarceration Grovetown, at Georgia. Considering the unconventional course charted by this litigation, a discussion of the procedural background is warranted. A. Procedural Background Plaintiff, October 16, at the time acting pro se, initiated this suit on 2009. (Doc. no. 1.) On April 1, 2010, Plaintiff, Dockets.Justia.com having obtained counsel, following claims: deliberate amended his amended complaint, first, he alleged that Defendants indifference to his present and future raising the acted with health needs in exposing him to unjustifiable levels of environmental tobacco smoke ("ETS") he at ASMP, alleged deliberate in violation of the that Steven indifference interfering with his Defendants' and Edmond to his present medical Fourteenth Amendment.1 On Scott Fourteenth Amendment; and Garnett future treatments, in second, acted with health needs violation of in the (Doc. no. 13 fl 40-41.) first motion for summary judgment, the United States Magistrate Judge issued a report and recommendation that the motion be 28.) granted Specifically, Defendants' claim in part further only on Mr. ETS claims Plaintiff's and Evans." (Id. and that to Mr. no. The motion 4 6, recommended Plaintiff's medical Defendants' claims (Doc. Judge Garnett. and that the ETS in part. Magistrate granted as Scott recommended Plaintiff s the motion be against and denied denied Defendants Walker, Judge as "case should proceed to against that treatment Magistrate be at to trial Wilkes, at 29.) 1 42 U.S.C. § 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred . . . ." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). An incarcerated plaintiff may use § 1983 as a vehicle to challenge the deprivation of his Eighth Amendment right to be free of cruel and unusual punishment, which was made applicable to the States by the Fourteenth Amendment. See Estelle v. Gamble, 429 U.S. 97, 10102 (1976) (citing Robinson v. California, 2 370 U.S. 660 (1962)). After conducting a careful, Court its adopted the own Magistrate opinion. dismissed from Judge's Consequently, the proceed to trial against case, Defendants deliberate de novo review of and "only on indifference in Scott Court Wilkes, Mr. that Eighth and exposing and held Plaintiff's Walker, this report and recommendation as Mr. the the file, him the case Amendment Evans to Garnett for levels were would claims acting [ETS] of with that posed an unreasonable risk of serious damage to his future health." (Doc. no. 49 Plaintiff's (See doc. future-health nos. chief, the matter of 88, Court law, evidence (emphasis 101.) claim at granted a that parties held motion Plaintiff causal (Doc. nos. entered in Defendants' trial Defendants' concluding actions. The on proceeded October 1, on 2012. At the conclusion of Plaintiff's case-in- establishing Defendants' added).) link 95; for had a failed between 101, judgment his at 84-87.) favor on October 2, 2012. to as a present harm and Judgment was (Doc. no. 95.) Plaintiff timely filed a notice of appeal on October 23, 2012. (Doc. no. of Appeals judgment (Doc. the 96.) no. In a per curiam opinion, affirmed as a 103, Magistrate adoption Order. this matter at of 7-8.) the Eleventh Circuit Court Court's grant law Plaintiff's on However, Judge's report (Id. at 4-5.) and it of Defendants' noted a motion for future-health claim. discrepancy between recommendation and the Court's The Magistrate Judge's report and recommendation never specifically recommended that summary judgment 3 was appropriate for Plaintiff's present-health claims. The Court of Appeals noted that limiting the trial proceedings to solely the future-health claim operated as a rejection of the Magistrate's Judge recommendation to deny Defendant's motion in its entirety and "effectively grant[ed] on [Plaintiff's] addition, summary judgment in favor of the Defendants present-health claim . . . ." (Id. at 6.) In the Court of Appeals explained that this Court failed to "sufficiently explain its rulings" and provide the Court of Appeals the "opportunity present omitted) health conduct claim. (quoting 2007)).) Cir. to meaningful (Id. Danley v. Consequently, at appellate 5-6 Allen, the (internal 480 Court F.3d of review" on quotation 1090, 1091-92 Appeals the marks (11th vacated the Court's adoption order in part and remanded the matter "to enter a reasoned order addressing whether the Defendants summary judgment on the present-health claim." By Order dated June 12, 2013, are entitled to (Id.) the Court reopened the case and directed the parties to re-brief only the portions of their filings relevant to the present-health claim. have complied with the Court's (Doc. no. 104.) Order, summary judgment on July 2, 2013.2 and The parties Defendants (Doc. no. 109.) moved for The time for 2 The Clerk has issued to Plaintiff notice of the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. no. 110.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. 4 filing materials in opposition has expired, and the motion is ripe for consideration. B. Factual Background The relevant facts, construed in Plaintiff's favor as the nonmoving party, are as follows. Plaintiff, ("GDOC") an inmate in the Georgia Department of Corrections system, 17, 2009, until his transfer to a different prison facility on May 11, 2010. (Walker Aff. was incarcerated at ASMP SI 5 & Ex. A.) from February Defendant Walker was the Warden of ASMP at the time Plaintiff arrived, and he served in that position until October 1, 2009. Defendant Wilkes Defendant Evans Evans Aff. SI (Id. was SI 4.) During the relevant the Deputy Warden of Care was the 3.) Captain Defendant of Security. Wilkes's SI 4. ) (Wilkes Defendant addition, Wilkes dormitories and responsibilities reviews job Aff. SI 4.) chairman inmate of the (Id. coordinating SI and 5.) and and SI 3; include directing prison (Wilkes Aff. classification profiles details. include operations at ASMP, procedures, as Aff. responsibilities and overseeing care and treatment services. In period, and Treatment, participating in prison management and operations, security, time assigns committee, inmates Defendant administering to Evans's security ensuring compliance with security policies and and overseeing prison safety and sanitation. (Evans 1. Plaintiff's ETS Exposure at ASMP and Respiratory Conditions When he arrived at ASMP, level three mental about a week. SI 7 & Ex. Nichols health and (Id.) 12.) a Nichols heavy After the time, non-smoking Next, (Cassady cell for Nichols Nichols, David (Id. ; doc. smoked on average Due to cell. the mate for lack Dep. Plaintiff's Wayne no. 60 of 1-3, at third cell smoke breaks, Little (Doc. mate was for During cigarettes per day. 64-65.) three no. was 1-3, a non- (Cassady Dep. ("Little") 13.) at approximately single weekend. Little Justin smoked approximately 30 Plaintiff's cell and shared Plaintiff's cell month. cell primarily in their shared cell. smoker who was moved out after a 64.) a smoker. shared During that cigarettes per day, at with He was then assigned a different cell mate, ("Nichols"), months. unit (Doc. no. 1, at 13;3 Cassady Dep. at 64;4 Walker Aff. A.) Plaintiff Plaintiff was initially housed in the to approximately one that (Doc. assigned at no. primarily time, 1-3, Little at smoked 13.) in the and its (Id.) 3 This Court accompanying exhibits (See doc. 4 nos. 4 6, may consider Plaintiff's in ruling on Defendants' at 3 n.3; sworn motion complaint for summary judgment. 4 9.) Defendants filed Plaintiff's deposition taken in Cassady v. Owens, No. 4:08-CV-250 (S.D. Ga. Nov. 3, 2010) (hereinafter "CV 408-250"), which arises out of Plaintiff's exposure to ETS at Coastal State Prison. (See id., doc. no. 1.) Defendants relied on this deposition in support of their first motion for summary judgment. (Doc. no. 33.) The Court will therefore consider such testimony to the extent that it relates to the issues in this case. 6 Ninety-two percent of health unit smoked indoors. unit's exhaust the one fan majority of the day, unit. (Id.) The inmates (Doc. remained and ETS three June of accumulated mental 2009, ETS confinement. unit (Wilkes was into a SI 15; Aff. 1, at the level three 13.) off often Moreover, position was so exposed to 1, the Plaintiff's thick that transferred single-man Walker out cell Aff., of in Ex. the it significant levels of ETS level segregated A.) While and he was suffered severe respiratory attacks that required medical treatment. no. the for Plaintiff did not have a cell mate in the segregation unit, nevertheless mental (Id. at 14.) Plaintiff health in the often accumulated in the triggered the unit's fire alarm. In no. in (Doc. at 36-37.) On or about June 24, 2009, Plaintiff attempted suicide by soaking a rag with liquid Albuterol and forcing it into his mouth. (Doc. no. 1, at 38-39; Dr. Nichols Aff. SI 33.5) admitted to ASMP's "Crisis Stabilization As a result, he was Unit" and transferred to the "Acute Care Unit" on July 1, 2009. Aff. SI July 7, 33; Wilkes Aff. 2009, health unit, SISI 21-22; Plaintiff was Walker Aff., transferred to Ex. the was later (Dr. Nichols A.) On or about level four mental where he remained until his transfer to another prison facility on May 11, 2010. (Wilkes Aff. SI 17; Walker Aff., Ex. A.) 5 Dr. Nichols serves as the Medical Director at ASMP and is licensed to practice medicine in the State of Georgia. (Dr. Nichols Aff. f 3.) While in the level in a single-man inside. four mental health unit, cell with (Wilkes Aff. SI windows 17.) However, subjected to high levels of ETS 34-25, at 39-41.)6 inmates housed severe 86, he could open Plaintiff was in the unit. (Doc. from the nevertheless nos. 34-19 to In addition, prison officials observed that the disorders policies, in that Plaintiff was confined the level and were four mental health especially unit suffered non-compliant from with including those prohibiting smoking indoors. ASMP (See id. at 94.) Plaintiff is a non-smoker and has no history of smoking in his immediate family. transfer to ASMP, Disease 421, ("RAD") 423, Dep. at 10-11, 53.) Prior to his Plaintiff had been diagnosed with Reactive Airway and asthma.7 436, prescribed (Cassady 440, Q-var, 480.) an (Dr. Upon albuterol Nichols Aff., intake inhaler, at and Ex. ASMP, a B, at Bates Plaintiff nebulizer to was treat 6 This evidence comes from Plaintiff's testimony in CV 408-250 at a show cause hearing held on October 21, 2010, before the Honorable G.R. Smith, United States Magistrate Judge. (Cassady, Case No. 4:08-CV-250, doc. no. 105.) Defendants submitted the transcript in support of their first motion for summary judgment. The Court will therefore consider such testimony to the extent that it relates to the issues in t h i s case. The impetus for the show cause hearing was the Commissioner of the GDOC's alleged noncompliance with a preliminary injunction issued by the Honorable William T. Moore, Jr., United States District Judge. (See id., doc. nos. 27, 37, 40.) The preliminary injunction reguired the defendant to provide Plaintiff with smoke-free accommodations. (Id., doc. nos. 37, 40.) Further, the injunction explicitly applied to Plaintiff's confinement at ASMP. (See id.) The Magistrate Judge determined that Plaintiff's confinement at ASMP failed to comply with the preliminary injunction. (See id., doc. nos. 106, 113.) 7 The parties alternate between the terms "Reactive Airway Disease" and "Reactive Airway Dysfunction Syndrome" when referring to Plaintiff's condition. condition as For ease of reference, the RAD. 8 Court will refer to Plaintiff's his asthma. medical (Id. & Ex. B, tests Obstructive defect." revealed that Pulmonary (IcL On March 24, Amy Blanchard, persistent who B, that In Plaintiff s and at Bates 416-17; concluded that asthma, her ("COPD") "severe doc. no. diffusion 1-3, allergic rhinosinusitis, (Dr. Nichols Aff. findings and symptoms Plaintiff to "avoid smoke, were exacerbated (Id.) chemicals." Dr. by Dr. (Id. 2009, and B., at Bates Blanchard smoke and at Bates 393-94.) A CT noted that she Blanchard instructed & Ex. B, at Bates 11.) indicated that Plaintiff had developed moderate-to-severe COPD and hyperinflation.8 B, Dr. "probable" SI 27 & Ex. recommendations, Further tests performed on April 22, & Ex. at 63.) Plaintiff had moderate-to-severe found blood in Plaintiff's sputum. 29 Chronic Plaintiff was evaluated by a pulmonologist, obstructive sleep apnea. 413.) In mid-March of 2009, Plaintiff had developed mild Disease SI 25 & Ex. 2009, at Bates 435-36.) scan performed (Id. SI on June 23, 2009, revealed "multiple pulmonary nodules" in Plaintiff's lungs.9 (Id. SI 39 & Ex. B, Bates 104, 278, 400.) In addition, nebulizer treatments increased from twice a day, times a day, mandatory. Plaintiff's as needed, to four (Cassady Decl. SI 21.) 8 During his incarceration as ASMP, Plaintiff also suffered from bipolar disorder, obsessive compulsive disorder, post-traumatic stress disorder, gender identity disorder, nocturnal enuresis, obesity class 1, and hypertension. (Dr. Nichols Aff. M 10, 23 & Ex. B, at Bates 267, 433, 436.) 9 A follow-up CT scan performed on September 22, 2009, revealed that all but one of the nodules had resolved themselves. B, at Bates 104, 278.) 9 (Dr. Nichols Aff. SI 40 & Ex. During his confinement at ASMP, Plaintiff wrote numerous letters and grievances to Defendants, informing them of his various respiratory conditions and complained that to high levels of ETS in his policy against indoor he was being subjected living quarters despite the prison's smoking. (See doc. nos. 1-3 to 1-5.) He also indicated that his ETS exposure was negatively affecting his health and requested (Id. ) In letters to Defendants Wilkes and Evans dated April 5 and April 9, 2009, that he Plaintiff be provided explicitly with ETS-free noted Dr. instruction that he not be exposed to smoke.10 11, 17, In response to informed his that letters the By a memorandum Plaintiff's (Doc. no. further wrote, situation." dated April policy 1-4, at (See 8, (Doc. no. Defendant 1-4, Plaintiff prohibiting 2009, stating that he "Even if you could, (Id.) grievances, concerns. complaints, to move to another dorm. and prison's smoking adequately addressed his rejected Blanchard's 19.) repeatedly 1-5.) housing. at 10.) doc. was not had indoor 1-4 Defendant to Wilkes eligible Defendant Wilkes doing so would not Wilkes nos. was conferred change with your other prison officials about Plaintiff's housing assignment following the preliminary injunction Plaintiff be Aff. stated, 1 "detail 36 & Ex. in CV 408-250 provided smoke-free accommodations; 10 On April 7, that granted 2009, requiring Defendant that Wilkes prison officials issued him a "medical profile" restriction: no O.) 10 chemicals, fumes or dust." (Wilkes and the other prison officials decided to keep Plaintiff confined in the same unit despite knowing that the inmates in that unit were particularly non-compliant with the smoking policy. 19 to 34-25, (Doc. nos. 34- at 94-95.) 2. ASMP's Smoking Policy The GDOC Standard Operating Procedure effective during Plaintiff's incarceration at ASMP provided that "the use of tobacco products by inmates shall be prohibited inside any building, or state vehicle" and allowed inmates areas the Aff. outside SI 8 of & Ex. fifteen-month B; correctional Wilkes Aff. incarceration I 7 at to smoke only in designated facility's & Ex. ASMP, buildings. A.) ASMP During work as (Wilkes Aff. Despite the policy, the did more allow (Henry Aff. SI Walker to enforcing the smoking prison officials rarely enforced they "didn't start giving smoke breaks at ASMP filed [for] the (Cassady Dep. smoke methods Although prison officials allowed inmates breaks, at 52.) nor [preliminary] Even when they were very inmates smoking indoors. Defendant 294 SI 10.) if at all. [Plaintiff] 408-250]." alternative smoking policy, some smoking breaks, until issued ASMP officials also used verbal warnings or additional assignments policy. (Walker Plaintiff's officials disciplinary reports for smoking policy violations. 6 & Ex. A.) office the (Doc. deputy 11 the injunction prison officials infrequent, no 1-3, wardens, [in CV resulting at 12-29.) including in Neither Defendant Wilkes, performed daily inspections. Further, policy when to Plaintiff Defendants, reported he never (Cassady Decl. violations observed action to enforce the smoking policy. of SIS! 3-4, ASMP's Defendants 12.) smoking taking any (Id. SISI 5, 10, 11, 13, 20.) Prison inmates were undeterred from smoking in the dorm and did so with relative impunity: sometimes prison officials issued disciplinary reports, but often they merely told the prison inmates to cigarettes put out their enforcement measures. an inmate averred (See doc. that prison without no. 1-3, officials taking at 12-29.) have away at 7-8, without 11-12, actually 15-16.) making inmate continued smoking. prison officials smoking indoors. II. him put (Id.) sometimes (Doc. Nevertheless, no. SUMMARY him (Doc. nos. the the smoking 34-19 to officials cigarette, walked and the Another inmate averred that the violated 1-3, out additional For example, caught indoors and told him to put out his cigarette. 34-25, any the policy themselves by at 26.) JUDGMENT STANDARD The Court should grant summary judgment only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Facts are "material" if they could affect the outcome of the suit under the Inc., governing substantive law. 477 U.S. 242, 248 (1986). Anderson v. Liberty Lobby, The Court must view the 12 facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. 587 must Co. v. draw States v. 941 Zenith "all Radio justifiable Corp., 475 inferences Four Parcels of Real Prop, F.2d 1428, 1437 U.S. (11th in 574, [its] (1986), favor." and United in Greene & Tuscaloosa Cntys., Cir. 1991) (en banc) (internal punctuation and citations omitted). The moving party has the initial burden of showing the Court, by reference to Celotex Corp. v. this burden materials Catrett, depends on on 477 U.S. who the non-movant may carry the has initial the 317, bears Fitzpatrick v. City of Atlanta, When file, 323 the 2 F.3d 1112, in one of 1115 proof at of for (1986) . burden the burden of burden basis two the motion. How to carry proof at trial. (11th Cir. 1993). trial, ways—by the movant negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. 1991) and Coats & Clark, Inc., (explaining Adickes v. S.H. Celotex Corp. v. Catrett, 929 F.2d 604, Kress & Co., 477 U.S. 317 606-08 398 U.S. (1986)). (11th Cir. 144 Before Court can evaluate the non-movant's response in opposition, first consider whether the movant has met its initial (1970) the it must burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Columbus, 120 F.3d 248, 254 (11th Cir. 13 1997) Jones v. City of (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608. If—and only if—the movant carries its initial burden, movant there may is avoid Id. the which judgment indeed a material judgment." trial, summary issue of by fact "demonstrat[ing] that precludes movant must tailor carried its its response initial to the burden. If presents evidence affirmatively negating a material movant "must that summary When the non-movant bears the burden of proof at non-movant the only the non- respond with evidence sufficient method the fact, to by movant the non- withstand a directed verdict motion at trial on the material fact sought to be negated." Fitzpatrick, 2 F.3d at absence of evidence on a material show that ignored" by sufficient the the record contains the movant to or withstand a cannot carry its "come v. Ross, non-movant 663 must that burden by respond at relying on contained in with at trial 1116-17. an the based The affidavits complaint. 1981). or as or evidence the pleadings (11th Cir. provided by Federal Rule of Civil Procedure 56. 14 shows "overlooked additional motion Id. 1033-34 movant was forward with directed verdict F.2d 1032, the the non-movant must either evidence repeating conclusory allegations Morris If fact, alleged evidentiary deficiency." movant the 1116. on non- or by See Rather, otherwise Ill. A. DISCUSSION Plaintiff's Present Health Claim The Farmer Eighth v. Chapman, permit Amendment Brennan, 452 U.S. inhumane 511 U.S. 337, ones. does 349 not 825, require 832 (1981)). Id. comfortable (1994) (quoting Neither, Rhodes v. does it however, The Eighth Amendment and idealistic concepts of dignity, prisons. "embodies civilized standards, broad humanity, and decency" and prohibits punishments that are "incompatible with the evolving standards of decency that mark the progress of a maturing society ... or which involve the unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. (internal quotation marks and citations omitted). Eighth Amendment humane conditions clothing, 511 imposes shelter, U.S. at of duties prison confinement, medical 832. on care, However, and safety "[n]ot (11th Albers, wanton Cir. 475 2003) U.S. infliction scrutiny." Farrow v. (alteration 312, 319 of pain' in . original) governmental 320 F.3d (quoting "[0]nly the . constitutes punishment forbidden by the Eighth Amendment." to inmates. a prisoner is West, (1976) the provide adequate to original) (1986)). . officials every 103 Accordingly, including affecting the interests or well-being of Eighth Amendment 97, food, Farmer, action subject 1235, 1242 Whitley v. 'unnecessary and cruel Id. and unusual (alteration in (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1997)). 15 to Where, has as here, violated whether a his a plaintiff has alleged that exposure to ETS constitutional rights, prison official has been deliberately prisoner's existing serious medical needs, 104; Brown v. whether a Smith, prison McKinney, 1282, 1284 509 (11th 187 F. App'x 947, official conditions posing a v. has been Cir. 25, 35 deliberately (1993); 2005). Plaintiff's appeal. reasonable (See jury doc. could nos. conclude indifferent to Plaintiff s was 95, to 2006), a at and indifferent to See Helling v. Hicks, future 400 health F.3d claim has favor at trial and affirmed 103.) that to 429 U.S. harm. Kelley as indifferent (11th Cir. substantial risk of future U.S. inquire see Estelle, 949-50 already been adjudicated in Defendants' on courts At issue Defendants is were whether a deliberately existing serious medical needs while he incarcerated a t ASMP. To sustain an Eighth Amendment claim pursuant 1983, Plaintiff must satisfy satisfy an objective component, while he was F.3d 1312, Plaintiff three that he had a incarcerated at ASMP. 1326 must (11th Cir. satisfy a elements. 2007) subjective 42 First, U.S.C. he § must serious medical need See Goebert (citation to v. Lee Cnty., omitted).11 component, that 510 Second, Defendants 11 The plaintiff in Goebert was a pretrial detainee, and the court noted that the Due Process Clause of the Fourteenth Amendment technically governed her claim. See Goebert, 510 F.3d at 1326. However, the court analyzed her claim under the Eighth Amendment, observing that "the standards under the Fourteenth Amendment are identical to those under the Eighth." Id. (citing Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1115 (11th Cir. 2005)). 16 "acted with deliberate indifference to [his] serious medical need." Id. Third, "as with any tort claim, [he] must show that the injury was caused by [Defendants'] wrongful conduct." Tallapoosa Cnty., 50 F.3d 1579, 1582 Id. (11th Cir. (citing Hale v. 1995)). The Court will consider each element in turn. 1. Objective Component A serious medical need is "one that has been diagnosed by a physician as mandating treatment of Corrections, No. (quoting Mann v. 2009) ) . 12-13387, Kuhne v. 2014 WL 503146, Taser Int'l, Alternatively, . . . ." Inc., at *4 (11th Cir. 588 F.3d 1291, a serious medical need is Florida Dep't 1307 2014 (11th Cir. "one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention." Id. at *4 (quoting Mann, 588 F.3d at 1307). Here, the particularly relevant susceptible medical to evidence ETS shows exposure. that He Plaintiff suffers is from respiratory conditions that became progressively more severe during his confinement at ASMP, including RAD, moderate-to-severe asthma, moderate-to-severe COPD, and allergic rhinosinusitis,12 the frequency of Plaintiff's conditions has increased. 12 Circuit In CV 408-250, found that treatments for these Similarly, respiratory Plaintiff also suffered from respiratory the United States District Plaintiff's asthma and RAD Judge and the Eleventh rendered him especially susceptible to ETS exposure. (See Cassady, Case No. 4:08-250, doc. no. 112, at 9; Cassady v. Donald, 447 F. App'x 28, 31 (11th Cir. 2011).) Notably, these findings predate Plaintiff's later, more serious diagnoses, including his moderate-to-severe COPD. 17 episodes her that findings required medical and exacerbated by recommendations smoke sputum. She Plaintiff presented levels ETS of mental with in Compare Cir. of each who Nasseri 2010) fact found Plaintiff of that the to he units Blanchard noted in Plaintiff s blood Plaintiff smoked City spent between he of he eyes, spitting blood" had was with Morefield v. serious claimed to Brewton, 373 was 60 housed in at ASMP. level three smoked, often the sharing App'x day. issue need difficulty he spray had in a 15, cell per cigarettes a plaintiff created a genuine medical F. significant (11th that 442 to 18-20 had pepper Moreover, several months Athens, coughing, and exposure a Plaintiff's the inmates and were in exposed where 30 symptoms smoke. avoid was where 92 percent of v. watering hour-long she (concluding that the that that Dr. exposure was particularly high and where inmates that evidence health unit, indoors, and instructed Plaintiff s ETS treatment. where plaintiff breathing, developed poorly F. App'x 425, "had was from RAD and his ventilated (11th Cir. 427 car) , 2011) (concluding that the plaintiff failed to show that he had a serious medical policy need where and allegedly cell with where high-ETS a the prison effectively enforced the plaintiff environment; smoker; and spent did provided not only two allege conclusory its no-smoking months that he in the shared assertions a that ventilation was poor and that ETS exposure worsened his conditions 18 and caused coughing, sleep deprivation, water eyes, and breathing problems). Accordingly, a reasonable jury could conclude that Plaintiff's respiratory conditions and exposure in the high-ETS environment at ASMP constituted objectively serious medical needs. 2. Subjective Component As for Defendants the subjective acted medical needs. "with Goebert, requires proof of risk of conduct (alteration show that improved the (11th Cir. (11th Cir. 510 F.3d at 1326. disregard more than [gross] original). 2010) (citing aware of of that the risk; v. and Id. the infirm that serious Bryant, Turner, (3) at evidence by 1327 must condition take actions Thomas v. LaMarca his negligence." recklessly declined to condition[]." to show Deliberate indifference Stated differently, were must "(1) subjective knowledge of a (2) Defendants "knowingly or Plaintiff indifference" harm; is in deliberate three elements: serious that element, and that would have 614 1288, 1312 F.3d 995 F.3d 1526, 1535 evidence that 1993)) . Plaintiff has shown a sufficient quantum of Defendants were deliberately indifferent to his plight to overcome their motion. methodically As detailed Plaintiff repeatedly the levels high already of his notified ETS at noted, Plaintiff's respiratory Defendants ASMP 19 in a medical conditions. of these series Further, matters of records and letters of and grievances. transfer In to those an communications, ETS-free environment Plaintiff and noted pleaded Dr. for a Blanchard's report detailing his respiratory conditions and instructing that he avoid smoke. preliminary smoke-free Moreover, injunction even needs, requiring environment officials at ASMP. that the District Judge in CV 408-250 that that issued a Plaintiff be provided applied to the explicitly a prison This evidence permits the reasonable inference Plaintiff's medical their obligations under the preliminary injunction, and Dr. Blanchard's though Defendants instructions they consciously chose were that not aware Plaintiff to of not even attempt be to exposed improve to smoke, Plaintiff's circumstances or comply with the preliminary injunction.13 Moreover, enforce the there GDOC determining at 36). to 13 enforce Curiously, issue prohibiting whether prison See Kelley, However, policy will not act as a fail genuine it. See that smoking The adoption of a indifferent to ETS. 509 U.S. a policy facility buildings. to is Defendants inside failed correctional smoking policy is officials were 400 F.3d at 1284 to relevant deliberately (citing Helling, the mere existence of a formal smoking shield where prison officials consciously Talal Defendants v. argue White, that 403 they F.3d were 423, not 428 (6th deliberately indifferent in treating Plaintiff's asthma, stating that "the record is void of any evidence of [Plaintiff] complaining about the medical treatment that he received for his asthma." (Defs.' Br. in Supp. Mot. Summ. J., at 10.) However, the treatment of Plaintiff's asthma attacks is not at issue here. Plaintiff's claim focuses on Defendants' knowledge of his severe respiratory conditions and their failure to reduce his exposure to ETS. 20 Cir. 2005) ("[T]he mere existence of non-smoking pods does not insulate a penal institution from Eighth Amendment liability . . . ."); Bartlett v. Pearson, 406 F. Supp. ("[T]he mere existence of [a smoking] satisfy the 2d 626, 632 (E.D. Va. policy will not, requirements of the Eighth Amendment; 2005) by itself, there must be a good faith effort to enforce the policy and the absence of such an effort may result in a finding of deliberate indifference."). Contrary to Defendants' contentions smoking policy in good faith, that cell example, mates, an continually inmate averred enforced the Plaintiff has submitted evidence that smoke breaks were rarely provided and that own they smoked that he inmates, indoors continued including his unpunished. smoking For undeterred indoors because the prison officials would tell him to put out his cigarette and go about their business without ensuring that he did as instructed. smoked indoors. failed to Another inmate avers that prison officials at ASMP Plaintiff's conduct daily evidence inspections also and shows that that Defendants prison officials failed to take action when Plaintiff reported an incident of indoor smoking. In addition, contention that Defendants' they enforced own the evidence smoking undermines policy in good their faith. Defendants highlight that they issued 294 disciplinary reports for smoking violations during the almost fifteen months Plaintiff was confined at ASMP and that they frequently used informal tactics to 21 punish violators. evidence of suggests However, Defendants' that the these lax facts, enforcement when of 294 disciplinary reports considered the smoking represent with policy, only a small fraction of the smoking violations that occurred at ASMP. Moreover, Defendant Wilkes observed at the show cause hearing that inmates in the level four mental health unit were particularly prone to violating admitting his infractions, the knowledge Defendant prison officials housed him in smoking of these Wilkes level Nevertheless, seemingly testified charged with the policy. that Plaintiff s four mental health be a situation where Defendants exhibited (Defs.' gross Br. negligence in Supp. Mot. suggests that Defendants' in Summ. chose the to rule other keep him Accordingly, this does not appear "imperfectly enforced" enforcing J., and unit. construing the evidence in Plaintiff's favor, to ubiquitous he care despite the at 15.) smoking Rather, or even policy. the evidence knowingly failed to enforce it. Equally unpersuasive is Defendants' contention that they were not deliberately indifferent to Plaintiff's exposure to ETS because he "was never given a profile for a smoke-free housing at ASMP[.]" (Id. at 12.) profile is, awareness at most, of Plaintiff has medical However, the of an ETS-related medical simply one vehicle that may show Defendants' Plaintiff's health shown that he conditions existence and the needs and notified Defendants attendant 22 risks exposure in of to ETS. writing of his ETS exposure, including Dr. Blanchard's explicit instructions to avoid smoke. is also apparent that put them on Plaintiff should not be exposed to ETS. is which aware notice that it 408-250, were injunction facts, CV Defendants preliminary these in these It of the further In light of immaterial whether Plaintiff had an ETS-related medical profile. Based upon the foregoing, the Court concludes there is a genuine issue of fact that Defendants were deliberately indifferent to Plaintiffs health needs and exposure to ETS. 3. Causation Defendants judgment also because causation. argue Plaintiff that they fails to are entitled present to sufficient summary proof of This Circuit has explained that a plaintiff seeking to raise an Eighth Amendment claim bears the burden to establish "two causal links." establish a indifferent at ASMP. F.3d at claim link acts Id. 1327 is Hale, F.3d between and omissions (citing LaMarca, at 1584. Here, Defendants' with the Plaintiff alleged deliberately unconstitutional 995 F.2d at 1538); must condition see Goebert, 510 ("The final requirement for a deliberate indifference that a defendant constitutional harm." F.2d 1370, 50 1380 have a causal (citation omitted)); (11th Cir. 1982) connection Williams v. ("[§ 1983] to Bennett, the 689 plainly requires proof of an affirmative causal connection between the actions taken by a particular person xunder color of state law' and the constitutional 23 deprivation." establish a injury. (citation link Id. between the v. constitutional Butler (2007)) . Plaintiff unconstitutional 995 F.2d at condition 1538); see must and his Thomas, 614 a plaintiff must also show a causal connection Cnty., The violation 268 abrogated on other grounds 544 Second, ("[T]o prevail on an Eighth Amendment claim brought pursuant to § 1983, Marsh the (citing LaMarca, F.3d 1317 n.29 between omitted)). F.3d and 1014, by Bell Atl. his injuries.") 1028 (11th Corp v. (citing Cir. Twombly, relationship between these two causal 2001), 550 U.S. links has been described by the Eleventh Circuit in LaMarca: If a plaintiff establishes a causal defendant's acts or omissions and the link between the infirm condition, the defendant is "precluded from contending that the unconstitutional condition was not at least a proximate cause of . . . injuries" that arose from that condition. This is not to say that a plaintiff need not show a causal link between the constitutionally infirm condition and the alleged injuries. Rather, the finding that a prison condition offends the Eighth Amendment presupposes the distinct likelihood that the harm threatened will result. The wrong in Eighth Amendment cases is the deliberate indifference to a constitutionally infirm condition; that wrong must, in turn, have been the proximate cause of the plaintiffs' injuries .... LaMarca, 995 F.2d at 1538-39 (quoting Williams, Here, a reasonable jury satisfied both causal links. link, two could conclude 689 F.2d at 1389). that Plaintiff has Regarding his burden under the first Plaintiff has presented sufficient evidence of causation in respects. Defendants' First, failure to a reasonable enforce the 24 jury GDOC could smoking conclude policy that exposed Plaintiff to high levels of ETS. for Defendants were all responsible ensuring compliance with prison policies addition, there policy—even is when smoking breaks evidence they found outside. that indoor smoking was the number of Defendants inmates Moreover, smoking this limited jury could infer significantly greater than the lax that Considering that Defendants' this reports enforced indoors—and a reasonable widespread and disciplinary rarely In the policy and the high percentage of inmates enforcement of smoked. that and procedures. evidence, indicates a reasonable due to jury could find failure to act caused the constitutionally infirm condition in exposing Plaintiff to high levels of ETS. Second, a perpetuated reasonable Plaintiff s jury could exposure to conclude the that Defendants constitutionally infirm condition in failing to move Plaintiff to an ETS-free environment. The evidence change suggests Plaintiff's that Defendants housing possessed assignment. In the authority addition, to Defendants received and considered Plaintiff's letters complaining of ETS and requesting a new housing assignment. in his letters to smoke. regarding Dr. Blanchard's instructions that he not be exposed Further, Defendant Plaintiff s cell injunction imposed in CV to keep Plaintiff Plaintiff specifically noted in the Wilkes discussed ASMP's assignment 408-250. level Nevertheless, four 25 under mental the obligations preliminary Defendants health unit, chose despite their knowledge that the inmates therein were particularly apt to violate the smoking policy. Defendants' about indoor argument smoking, that Plaintiff, purchased cigarettes own ETS exposure is unavailing. despite his complaints and contributed to his Plaintiff testified that he "never consumed any tobacco products." (Cassady Dep. at 53.) Plaintiff explained that he would give tobacco products to other inmates in exchange for their protection, which he felt was necessary in light of a past inmate. incident in which he (IcK at 54-55, was 66-68; doc. stabbed and no. 34-19, raped by at 8-13.) another Plaintiff further explained that prison officials limit the number of stamps and legal supplies prison's store; that a as a result, single inmate can purchase prior to obtaining counsel, often trade tobacco products for such materials. 55-56.) Also, tobacco products resources. (Id. Plaintiff causal Plaintiff link, out of stated pity that for he inmates at the he would (Cassady Dep. at occasionally purchased who have did not any at 56.) has that also satisfied his subjecting him burden to ETS regarding caused the him Defendants argue that "there is nothing in the record to second injury. show that any action or inaction by the Defendants caused any alleged injury" and that Plaintiff's "own, conclusory allegations condition worsened because of ETS exposure or that to suffer from respiratory problems 26 is (sic) ETS that his caused him insufficient to establish causation . . . ." at 16-17.) (Defs.' Br. in Supp. Mot. Summ. J., These arguments are meritless and are contradicted by the record evidence. Plaintiff s susceptible medical to ETS progressively more Dr. by Blanchard smoke though from to was his in given and tests evidence shows respiratory conditions at is his were addition, exacerbated Further, his was that even asthma, his on Based downgraded he his had Moreover, treatments upon the to developed lungs. breathing increased. In grew subsequently downgraded asthma nodules the ASMP. treat COPD was particularly conditions sputum. to revealed that he conditions medication pulmonary Plaintiff s time Plaintiff's Plaintiff's and that respiratory Plaintiff's moderate-to-severe, moderate-to-severe, hyperinflation that blood worsened. mild that show severe during his found Plaintiff condition and observed and records for his foregoing, a reasonable jury could conclude that Plaintiff's exposure to ETS at ASMP caused (concluding him the injury. evidence See Nasseri, permitted the 373 F. reasonable App'x at inference the plaintiff s prolonged exposure to pepper spray and the 18-20 that lack of medical treatment caused his claimed development of RADS). In short, Defendants were there aware are of genuine disputes Plaintiff's of serious material medical fact that needs, that Defendants were deliberately indifferent to those needs, 27 and that Defendants' failure to act caused Plaintiff's constitutional the assertion that Defendants "The of harm and caused him injury. B. Qualified Immunity The to Court qualified protects insofar rejects immunity. government as statutory their or officials conduct (quoting Harlow v. v. v. Eslinger, defendant must not rights Fitzgerald, 601 show 457 F.3d that was Townsend, 601 ex. Holloman rel. 2004)). constitutional fair Bennett v. 818 2010) Cir. within the 1158 right, time of and the Harland, 370 F.3d 1252, Townsend (quoting The discretionary this alleged (punctuation omitted) (2009) 2009)). his (2) person 231 (1982)); (11th acting damages established 223, (11th Cir. "A right is clearly established if, existing law, official v. civil then "the plaintiff must show that: at F.3d at 555 U.S. 800, immunity reasonable 1325 defendant violated a constitutional established a 1157 1317, he for clearly which U.S. F.3d 1152, 555 authority; if he does, clearly violate of entitled qualified liability Pearson v. Callahan, Jefferson Cnty., Case *from does constitutional would have known.'" doctrine are (1) the right was violation." (quoting Holloman 1264 (11th Cir. in light of already- the unlawfulness of the conduct is apparent, and if a rule applies warning Hendrix, that with obvious violating 423 F.3d 1247, 1255 and internal quotation marks omitted). 28 that clarity right (11th Cir. is to give an actionable." 2005) (citations Here, their there is discretionary discussed, Plaintiff no dispute that Defendants were acting within authority. has shown Eighth Amendment rights.14 established at the time And, that the the reasons Defendants Moreover, of for have previously violated his this right had been clearly violation. As observed by the Eleventh Circuit: Both the Supreme Court and this Court have held that a prisoner can state a cause of action under the Eighth Amendment for exposure to second-hand smoke by "alleging that prison officials have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health." Moreover, . the Supreme Court has "directly addressed" and "provided clear guidance" on Eighth Amendment claims based on exposure to second-hand smoke. Cassady, Kelley, 447 F. App'x at 31 400 F.3d at 1284). (quoting Helling, 509 U.S. deliberately medical Cir. needs." 2013) indifferent Cassady 35; Supreme Court precedent also recognizes that a "prison official can violate the Eighth Amendment being at v. (citing Estelle, to a Wilkes, 429 U.S. prisoner's 519 F. existing App'x at 103-04). ... by 677, serious 679 (11th In light of the Eleventh Circuit and Supreme Court case law delineating the nature of the Eighth health claim, Amendment right at issue the Court rejects Defendants' in Plaintiff s present assertion that they did not violate clearly established law. 14 Of course, the Court's finding that Plaintiff has shown a violation of a constitutional right for gualified immunity purposes is limited to the present summary judgment stage of these proceedings, in which the facts are viewed in the light most favorable to Plaintiff. This finding should not be construed as any ruling or commentary on whether Plaintiff will ultimately prevail on his claim. 29 C. Prison Litigation Reform Act of 1995 ("PLRA") Finally, Plaintiff's PLRA Defendants ability states brought by in a correctional to contend that recover money relevant prisoner part, "No confined facility, for damages a or PLRA in Federal in mental the this civil jail, precludes case. action prison, emotional The may or injury be other suffered while in custody without a prior showing of physical injury . . . 42 U.S.C. de minimis, F.3d 1279, § 1997e(e). This physical injury "must be more than but need not be 1286 (11th Cir. significant." 1999), a plaintiff has suffered anything more "not 489, 492 that a though Hale v. shave the ingrowing of evidence showing physical period hairs, pain of constitute Sec'y, not Fla. "caused and other time and more than of (1999), evidence that he a 345 190 F.3d at 1287 minimis physical symptoms inflammation, suffered that medical de minimis Corr., No. treatment" physical F. App'x (concluding even irritation, Conversely, "continuing persisted 13-11272, 30 effects injury, purulence and pain"). plaintiff required a de has shown that his injury is more bleeding, infection, that Dep't a 190 (en banc). Sec'y for Dep't of Corr., constituted shaving (2000) produce [d] (11th Cir. 2009); see Harris, dry Garner, than minimal or temporary physical from his confinement [,]" he has than de minimis. v. vacated by 197 F.3d 1059 reinstated in relevant part, 216 F.3d 970 When Harris for an severe extended is sufficient to injury. Thompson v. 2014 WL 115682, at *2 (11th Cir. Jan. 14, 2014) . As described by the Middle District of Georgia, [a] physical injury is an observable or diagnosable medical condition requiring treatment by a medical care professional. It is not a sore muscle, an aching back, a scratch, an abrasion, a bruise, etc., which last even up to two or three weeks. People in regular and ordinary events and activities in their daily lives do not seek medical care for the injuries they receive unless it obviously appears to be of a serious nature, or persists after home remedy care .... Injuries treatable at home and with over-the-counter drugs, heating pads, rest, etc., do not fall within the parameters of 1997e(e). Jordan v. Corr. (M.D. Ga. Mar. (N.D. Tex. 486 Here, Plaintiff Corp. 11, of Am., 2008) No. 4:08-CV-05, (quoting Luong v. the evidence suffered more supports than a In the de minimis addition, and evaluations daily increased. to Supp. 481, inference that at ASMP treatments to physical Plaintiff's Plaintiff suffered this for his attacks at He underwent multiple tests worsening respiratory conditions. manage evidence As conditions, respiratory his respiratory Considering this evidence in the Plaintiff, injury. worsened during his incarceration ASMP that required medical attention. His 979 F. reasonable the evidence shows that particularly his COPD and asthma, ASMP. Hatt, at *2 1997)). already described, at 2008 WL 687329, does not conditions light most support the also favorable conclusion that Plaintiff only suffered temporary effects from his exposure to ETS. See Quinlan v. (11th Cir. 2009) Pers. Transp. Servs. Co., 329 F. App'x 246, 249 (finding that an asthmatic plaintiff shackled in a 31 transport van only alleged injuries amounting to nothing more than discomfort physical and injury, headache, pain); Jan. consequently where difficulty he 2010) insufficient the Rather, Plaintiff s be more evidence and that than a (finding that conditions the cold sweats, that sugar physical period not pain of and time other and significant, physical infer that that injury above the de minimis threshold."). Plaintiff will without to back (S.D. Ga. more, is physical injury). inference and that progressively 2014 WL 115682, treatment. for an Although Thompson at weakness, and high "continuing persisted that pain, of numbness in his arm, fainting—amounted symptoms chest symptoms—headaches, required medical the acute minimis episodes reasonable See Thompson, weight loss, caused de 2010 WL 331922 minimis were plaintiff's dizziness, blood de a temporary periodic the worsened during his time at ASMP. *l-2 alleged hypertension, supports respiratory only No. CV 208-114, (concluding to he experienced breathing, Powell v. Harrison, 28, that severe extended perhaps alleged rose A reasonable jury could further continue to experience significant symptoms from his COPD and other respiratory conditions and require regular treatments to only manage these conditions. because there is a genuine issue of fact that more than a de minimis physical injury, Accordingly, Plaintiff suffered Defendants' attempt to limit the damages of his claim under the PLRA fails.15 15 Defendants also ask this Court to find that § 32 1997e(e) precludes IV. For the reasons set CONCLUSION forth summary judgment (doc. no. 109) above, Defendants' is DENIED. motion for This case will proceed to trial. ORDER ENTERED at Augusta, Georgia, this ^St day of March, 2014. . RANDAL UNITED 3 TATES "SOUTHERN HALL DISTRICT DISTRICT JUDGE OF GEORGIA nominal damages. The Court declines to do so. The availability of nominal damages to a prisoner plaintiff who fails to allege a physical injury remains an unresolved 1192, Cir. 1199 n. 2007), (2011); issue 10 in the (11th Cir. Eleventh Circuit. 2011); See Al-Amin Smith v. Allen, 502 v. abrogated on other grounds by Sossamon v. Texas, Boxer X v. Harris, 437 F.3d 1107, 1111 n. 3 Smith, F.3d 1255, 637 1271 131 S.Ct. (11th Cir. 2006). F.3d (11th 1651 In Hughes v. Lott, 350 F.3d 1157, 1162-63 (11th Cir. 2003), the Eleventh Circuit stated "[n]ominal damages are appropriate if a plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages." Thus, nominal damages may be available for Plaintiff's claim under § 1997e(e), even if he fails to demonstrate sufficient physical injury. 33
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