Atkinson v. Taylor

Roger ATKINSON

Stanley TAYLOR, Commissioner; Ra-

phael Williams, Warden; Perry Major; Bradley Lee,

Phelps, Captain;

Parker, Sgt.; Way, C/O, Fred in his capacity;

individual and official State Department

of Delaware of Correc-

tions; Green, Cpl., Andre in his/her capacity, Ap-

individual and official

pellants

No. 01-3565. of Appeals,

United States Court

Third Circuit.

Jаn. application). defendant suffered no constitutional violation its retroactive

Gregory (Argued), E. B. Smith Stuart Drowos, General, Attorney Deputy Wil- DE, mington, Appellants. (Argued), Young, Richard H. Morse LLP, Conaway, Stargatt Taylor, & Wil- DE, mington, Appellee. AMBRO, smoker,

Before pack-per-day appellee NYGAARD Circuit quit O’NEILL, Judges, Judge.* District receiving surgery after pituitary for a ade- noma. OF THE OPINION COURT Atkinson’s ETS claims arise under the O’NEILL, Judge. District Eighth and Fourteenth Amendments of appeal This is an from the District the United States Constitution. He as- appellants’ Court’s denial of motion for November, 1998, serts that from until No- qualified based on im- vember, 1999, appellants subjected him to munity. Appellee, an inmate of the Dela- punishment cruel and unusual by exhibit- Correction, Department

ware asserted ing deliberate indifference to his claims rights civil infractions under U.S.C. that he being involuntarily was exposed to 1) § claiming appellants violated high smoke, levels of second-hand which prohibition Amendment’s forced him to endure allergic severe reac- cruel and punishment by exposing unusual posed tions to ETS and an unreasonable him to environmental tobacco smoke risk future harm to his health. Accord- (“ETS”) that created a serious medical ing to his interrogatories, answers to dur- need posed and an unreasonable risk of ing seven-month incarceration at (Count I) 2) harm and retaliated and used inmates, MPCJF he shared a cell with two against excessive force him for his filing (Counts each of IV). “constantly” whom smokеd while ETS lawsuit III and Appel- 1) in the Appellee lants raise three issues on cell. shared appeal: another cell appellants whether are entitled to qualified weeks, with a constant smoker for six and claims; 2) immunity for the ETS whether later with a cellmate who ciga- smoked ten appellants are entitled to immuni- per day. rettes Appellee also claims that ty on the retaliation and excessive force he has been to other smoking 3) claims; and appellants whether in su- cellmates on various occasions. pervisory positions are to qualified entitled Shortly after being exposed to immunity they on all claims because lacked it, suffering symptoms from appellee com- notice of the underlying events. As to the plained to the medical staff at MPCJF and issues, first two we affirm will the District Sergeant alleges Sonata. Atkinson summary judgment. Court’s denial of We when he tried to help seek jurisdiction conclude that we lack to decide infirmary, treating responded nurse the third issue.

that she was unable to him transfer to a I. BACKGROUND2 cell with a nonsmoking roommate. Al- though appellee Sonata moved to a smoke- blind, Appellee Roger Atkinson is a dia- area, Way free later returned him to a betic prisoner who was housed at Dela- smoking Multi-Purpose appel- ware’s Criminal Fa- environment. Thereafter Justice (“MPCJF”). cility Williams, Lee, Although former one- lee wrote Captain letters to * O’Neill, Jr., Pаrker, Honorable N. Sergeant Phillip Thomas Senior Dis- Correctional Officer Judge trict for the United States District Way, Corporal Fred Andre Green. All Pennsylva- Court for the Eastern District of appellants ranks are those held the time nia, sitting by designation. filing complaint. (Commis- appellants Stanley Taylor 1. The Correction), Department accept sioner of the 2. We War- facts as the District Court Williams, Raphael Major Perry Phelps, den opinion. stated them in its to make Parker, Way permit appellee refused to Taylor expo- about his Phelps, attorney. Way also telephone did not cease. calls to his exposure sure to ETS. com- derogatory and made appellee cursed Parker, complained twice Appellee appellee ments about his blindness. When IE, IF and about supervisor of Pods him, harassing Way Way stop asked ETS, but Parker refused Way him cursed and stated again Appel- him a area. to move to smoke-free of these the law. Parker was aware above request- to Green and complained lee also Way and stop but failed to them. actions exposure but that he be removed from ed solitary confine- placed appellee Parker moved. was not thereby during periods, recreation ment alleges complaint Atkinson’s amended people him of the assistance of depriving exposed, with deliberate indif- that he was legаl him help to read his mail or able ference, smoking in his cell for to constant work, purpose prevent- allegedly for the suffered over seven months and as result proceeding him from with his civil ing headaches, nausea, eat, inability to an 5, 2000, Way prevent- action. On October difficulty breathing, numbness pains, chest receiving his one hour of appellee ed from limbs, teary eyes, itching, burning in his falsely and wrote in the recreation dizziness, throat, skin, and coughing sore had recreation. log that he refused Rizzo, sputum. Albert A. production M.D., pulmonary specialist who exam- or Additionally, appellee either received that there was a appellee ined concluded physical was threatened with retaliation probability” medical that these “reasonable In filing January his lawsuit. or Feb- for by were second- symptoms precipitated 1999, ruary Way appellee’s entered cell However, affidavit, in an hand smoke. him sleeping, grabbed by while he was prison physician disputed Dr. Keith Ivens bed, leg pulled appellee from his stat- that Dr. Rizzo’s evaluation and contended ing thought appellee that was dead. he symptoms Atkinson’s arose from seasonal 29, 2000, Way March threatened to On Wells, A. Ph.D. stated in allergies. Judson appellee appellee’s attack and took cloth- say “I that for expert report: an would appellee without ing, leaving clothing in filled Mr. Atkinson to continue a smoke occasion, Way over ten hours. On another would of death or cell increase risk appellee’s entered cell and threatened to non-fatal attack or heart stroke.” smash his face into the wall. Another time, Way that

Appellee hang ap- also asserts that MPCJF offi- stated he would occasions, subjected multiple Way him a variety pellee. pre- cials of abuses On He filing appellee receiving retaliation his lawsuit. vented his medi- Way tampered Way him that if he had with his food. contends told cations complained appellee about he would not and Parker have threatened ETS him placed segre- have been administrative told that he would never make it to occasions, gation. repeated Way Way appellee On read court. Various times told ass,” personal prison’s Way mail “kick that his appellee’s [his] over would privileges away, intercom so that other inmates could hear would be taken and that 4, 2000, that he May nothing it. On or before notes relat- there was could do about 2000, ing appellee’s appellee case were taken it. On December Green, struck him in the from his cell were read over the inter- attacked who Way Way incident was com and Officer Johnson. face and head. This investi- FBI, gated by apparently because of papers appellee requested withheld occasions, library. complаints by appellee’s from the law On other made mother. Thereafter, Way appellee right. told over the tional City See Ziccardi v. Phila- (3d regret bringing Cir.2002). intercom that he would delphia, 288 F.3d Way FBI into the matter and that would pay. appellee

make him When was leav- QUALIFIED III. IMMUNITY Way room ing appel- interview ordered Katz, Saucier clothing. appellee lee to take off his After (2001), 150 L.Ed.2d 272 disrobed, Way clothing kicked his around explained the two-part in and said that he had to make sure quiry court must make order to deter appellee was anot woman because women mine whether a state official is entitled to facility. were to another sent On Decem- qualified immunity: 27, 2000, ber bring appel- Green refused to A required court upon rule trays. lee his breakfast and lunch On consider, immunity issue must 16, 2001, February appellee when returned then, question: this threshold Taken in appearance, from a court strip he was light most party favorable to the booking, searched in which is standard asserting injury, do alleged the facts procedure. Appellee then returned to Pod show the officer’s conduct violated a con- IF Way and for no reason him strip made right? stitutional ... again. If no constitutional right would have According appellee, to he has written to been violated were allegations the estab- Williams, Parker, Phelps, Taylor, and lished, necessity there is no for further Green, spoken to about the harassment hе inquiries concerning qualified immunity. Way. received from hand, On the other if a violation could be made out aon favorable view of the II. STANDARD OF REVIEW submissions, next, parties’ sequential the by Review this Court is plenary step right is to ask whether the a qualified immunity when denial of turns clearly established. solely question on a of law. Brown v. 201, 121 Id. at S.Ct. 2151. Armenti, (3d 69, Cir.2001). 72 To be established “[t]he recently We reiterated that this Court contours of the must sufficiently be jurisdiction lacks to evaluate the sufficien clear that a reasonable official would un cy of the evidence reviewing when a denial derstand that what doing he is violates based on lack of right.” Creighton, Anderson v. 483 Horn, qualified immunity. Walker v. 286 635, 640, 3034, 107 U.S. 97 L.Ed.2d (3d Cir.2002) (“[W]e F.3d must (1987). The Saucier Court further adopt by the facts assumed the District explained prong the latter of the test: Court.”); Jones, see also Johnson v. note, This inquiry, it vital to is must 304, 319, U.S. 115 S.Ct. 132 L.Ed.2d in light specific be undertaken of the (1995) (no interlocutory appeal from case, context of the gen- as broad summary denial of judgment based on re proposition; eral and it too serves to fact). maining genuine issues of material understanding advance law the and to Although may we not evaluate the suffi to allow officers avoid the burden of trial ciency of the prove evidence to the facts if qualified immunity applicable.... is allegedly giving rise to claim, may we say determine whether the facts This to is not that the formulation identified the District Court of a general point, constitute rule is beside the nor of a violation established constitu- it to insist the courts must have the claim under a valid meet to state precise formulation upon agreed instance, Amendment. Assuming, for the standard. agreed that cer- courts have that various prong that the first explained The Court violation is a constitutional tain conduct objective one: is an Helling test in a fair distinguishable facts not under that he himself must show prisoner] “[The in the presented case

way from the facts high lev- unreasonably exposed to being hand, would not be entitled the officer 2475. Id. at 113 S.Ct. of ETS.” els simply on immunity based to factor, objective to the respect With agreed courts had not argument beyond a scientific Court noted of the control- verbal formulation on one into the seriousness inquiry statistical ling standard. likelihood that and the potential harm actually will be injury to health such 201, 203, Saucier, 121 S.Ct. ETS, to by exposure caused to assess “a court requires Amendment A. claims The ETS the risk that society considers whether it grave to be so complains of prisoner separate asserts two Atkinson of decen- contemporary standards violates against defendants claims unwillingly to such cy expose anyone involuntary exposure stemming (emphasis Id. at risk.” 1) future harm potential a claim for ETS: “In other stated: original). 2) ETS; from his arising words, must show that stemming from de- injury claim is not one that complains which he risk of existing medical indifference liberate to tolerate.” Id. today’s society chooses sequentially We will caused ETS. needs Helling prong defendants are entitled to test whether The second address prison claim. officials immunity subjective for each a one: whether qualified deliberately indifferent to a serious were Injury 36, Future Claim 2475. 1. harm. at 113 S.Ct. risk of Id. held that “a pris- Court has Supreme injury to the future respect With liable under the official cannot be found on 25, claim, Helling McKinney, v. 509 U.S. denying an inmate Eighth Amendment (1993), 2475, 22 125 L.Ed.2d 113 S.Ct. of confinement unless humane conditions re the constitutional established disregards the official knows of by the of the Saucier prong first quired safety; inmate health or excessive risk to immunity. Helling, In qualified test be aware of facts the official must both that a Court determined the could be drawn from which the inference of action exists under cause of serious harm that a substantial risk alleges prisoner when a that exists, and he also draw infer- must him, exposed with de officials have Brennan, 825, Farmer v. ence.” indifference, to levels of ETS that liberate 837, 1970, 128 L.Ed.2d 811 harm to risk of an unreasonable pose (1994). 35, Id. 113 S.Ct. 2475 health. at future concluding, Helling Court held a prisoner that stated claim (concluding properly had claimed prisoner with forced to share cell he was where smoker). to which he was ETS to the sec level of As five-pack-per-day fu- unreasonably endangered his the Hell inquiry, of the Saucier part ond 35, 113 Helling, ture health. ing clearly established elements Court remanded the case 2475. The plaintiff must S.Ct. Court two-part test

263 prisoner attempt could to prove firming so that District Court’s denial of a Rule 12(b)(6) objective subjective elements nec- motion to dismiss quali based on essary to establish violation of the fied immunity prisoner where asserted Id. Amendment. that he was forced to live and work in an smoke, environment filled with tobacco 1993, every Since almost of Ap though even the smoke had yet peals that has addressed this issue has harmed his health but allegedly posed a recognized that a prisoner’s right to be future); threat to his health in the Jacobs pose free from levels of ETS that an un 94-3241, 1995 Young, v. No. 150402, WL reasonable risk of harm future (6th 1995) *2 5, April Cir. (unpublished by Helling.3 established See Alvarado v. opinion) (concluding prisoner’s right to be (7th Litscher, 648, Cir.2001) 267 F.3d 653 free from harmful levels of ETS was clear (affirming District Court’s denial of Rule 1993); ly established see also Weaver ‍‌‌‌‌​‌‌​​​‌‌​​​‌​‌​​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌‍v. 12(b)(6) motion quali to dismiss based on Clarke, (8th 1253, Cir.1995) 45 F.3d immunity fied a prisoner where asserted asthma);(affirming District Court’s denial of a Rule that ETS exacerbated severe chronic 12(b)(6) motion to quali dismiss based on Keane, 330, rren v. 196 F.3d Wa Cir.1999) immunity fied (2d where alleged (denying prison officials’mo headaches, dizziness, nausea, severe vomit tion for based on qual ing, breathing case); difficulties from immunity in room Whitley ified an ETS v. smoker”); (5th Cir.1998) ing “heavy Hunt, but see Mills F.3d 887-88 Clark, 99-6334, No. 2000 WL (concluding claim was wrongly dis (4th 2000) *4 Sept.5, (unpublished Cir. missed as frivolous where doctor opinion) (reversing District report noting prisoner required issued Court’s denial nonsmoking quarters), immunity summary judg overruled on other Churner, grounds by ment for prison Booth v. officials because it U.S. wаs not 731, 735, 149 L.Ed.2d 958 level ETS in dormi (2001); v. City Angola, posed any Rochon Louisi tories unreasonable risk of fu ana, (5th Cir.1997) (af- harm).4 ture relying upon directly distinguishes Instead of cases that 4. The dissent ETS cases that question prison deal with the of whether offi survive a motion to dismiss from those involv- ing summary qualified immunity judgment by noting cials should be afforded a denial of in suits, require evidentiary support ETS that the former no the dissent cites to cases which in plaintiff's claims: inapplicable. "motions to dismiss our view are See v. Henderson Sheahan, (7th stage [are submitted Cir.1999); at] much easier to 196 F.3d 853 because, Deen, summary judgment (7th survive than un- v. Oliver 77 F.3d 159 Cir. 1996). summary judgment, like motions to dismiss The Henderson and Oliver Courts did require evidentiary support plain- no for the qualified immunity not consider the issue of making argument tiffs' claims.” In this the grants summary judgment but affirmed of to appears evaluating underly- dissent to be the the defendants based on a lack of evidence. ing Henderson, 853; Oliver, evidence. This is the exercise that Ziccar- See 196 F.3d at Moreover, undertaking di forbids appeal: us from on this F.3d at 159. ain later case the Appeals Johnson, argu Court of for the Seventh Circuit weAs understand if a defendant ably strongest ruling made the ETS that in a constitutional tort case moves for sum- clearly purposes mary judgment claims established for the qualified based on immuni- qualified motion, immunity: of ty “Given the decision in and the district court denies the Helling, right prisoner jurisdiction the of a to not be we lack to consider whether the subjected to correсtly a serious risk of his future health district court identified the set of resulting clearly summary judgment from ETS was established in facts that the record is Litscher, 1998-99.” Alvarado v. prove; possess jurisdic- 267 F.3d sufficient to but we (7th Cir.2001). to tion review whether the set of facts iden- claim, ap- conclude that Atkinson’s we procedur to identical in facts

In a case one, qualified to immu- are not entitled pellants the the' Court posture present al future harm. As that a claim of nity Circuit held on the ETS Appeals for the Second Helling the recognized, offi correctly prison denied the Warren Court District Court motion based on constitutional decision established cials’ prisoners prong where the first immunity right required by 333; Warren, suffering prob from sinus F.3d at see claimed to be test. Saucier nausea, headaches, dizziness, lems, short Helling, 509 U.S. also breath, and asthma pains chest ness of invokes the constitutional 2475. Atkinson smoking Sing Sing pris cellmates’ al- Helling prisoner: right claimed Warren, at 333. The War 196 F.3d on. unwillingly exposed that he was leging Helling “it held that after was ren Court an pose that unreasonable levels ETS officials prison that established harm. risk of future Amendment could violate satisfied the sec Similarly, Atkinson has to an in deliberate indifference through right test. The prong ond of the Saucier that to levels ETS exposure mate’s Helling recognized by the decision risk of future harm posed an unreasonable “clearly so that reasonable established” Moreover, health.”5 Id. inmate’s vio official would know when he is prison that it would concluded the Warren Court See, Alvarado, e.g., lating right. that prison officials to be unreasonable for be (“Given at 653 the decision Hell F.3d they violating pris were not lieve ing, of a not be rights where oners’ Amendment future subjected to a serious risk of his determined the District Court clearly es resulting health from ETS was believed, if allegations, over “[p]laintiffs’ Warren, 1998-99.”); tablished environment whelmingly describe (“We Helling, it hold that after from, resulting with in permeated smoke officials clearly established alia, inadequate ter under-enforcement could violate the rules, inmates, smoking overcrowding of to an in through deliberate indifference poor ventilation.” Id. mate’s to levels case, risk of future harm weigh posed without unreasonable health.”). The facts of respect to the inmate’s ing underlying evidence accept. Court chose to See by the court is sufficient to which the District tified district Ziccardi, 288 F.3d at 61. establish a violation of right. 5. The dissent characterizes Wairen as curso 61; Brundage, 288 F.3d at see also Sanders ry opinion lacking persuasive value that is not (8th 1995) (refusing 60 F.3d 484 Cir. to con However, binding on this Court. the dissent argument ap on sider "insufficient evidence” acknowledge directly fails to that Warren is peal qualified immunity a from denial of on Warren, ("We on-point. See 196 F.3d at 333 summary judgment prisoner's motion Helling, was estab hold that after it claim). present appeal appel The prison could violate the lished that officials however, summary judgment, denial of lants' through deliberate indif interlocutory in nature and based on a ference to an to levels of inmate's qualified immunity. Because the denial of posed future ETS that an unreasonable risk of ruling prevents health.”). Court’s in Johnson and harm to the inmate's facts evidence, decision, weighing present the us from procedural posture of the Warren a motion, 12(b)(6) analogous summary qualified immunity case is more to a denial on of underlying copy judgment, we would not evaluate the of the carbon where plaintiff's support claims case. evidence to Helling presented respect are similar to the facts to the causal link between ETS appellee. Helling appellee’s and symptoms, Dr. Rizzo’sletter was housed with a five-packs-per-day concluded that there was a “reasonable complained smoker and of “certain health probability” medical that appellee’s symp- problems.” Id. at 113 S.Ct. 2475. (itchy toms and burning eyes, pains, chest Here, appellee Atkinson was housed for throat, a sore persistent cough with spu- over seven months with “constant” tum production, paroxysms of coughing smokers. headaches) and resulting were precipitated by second-hand smoke. Although other

As to future harm Atkinson has offered Courts of Appeals have affirmed a grant of proof some for each alleged element of the summary judgment prison officials on 1) Eighth Amendment violation: evidence similar evidence as “too speculative,”6 we that he was to unreasonably high are deciding the issue of qualified immuni- ETS, levels of the risk of which is not one ty, and cannot evaluate sufficiency today’s society tolerate; chooses to Johnson, the evidence. See 2) prison and evidence that officials knew addition, 115 S.Ct. 2151. In appellee disregarded of and an excessive risk to his presented has evidence society element, health has safety. or As to the first become unwilling to imposition tolerate the appellee’s deposition interrogatory an- anyone swers continuous subjected state that he was unwanted risks of to con- smoke, second-hand smoking citing tinuous for at least seven Executive months. Or- Demonstrating harm, der in which risk of future A. the Governor of Delaware Wells, provided Judson Ph.D. banned smoking statistics state buildings except opined expert report in certain designated “for areas.7 As to the Mr. element, Atkinson to continue second Helling smoke filled defendants’ an- cell would increase his risk of death or swers to Atkinson’s interrogatories and non-fatal heart attack or stroke.” With depositions of Way, Phelps, Par- Henderson, example, 6. For an see 196 F.3d at 7. The dissent characterizes this reference as Henderson, procedural attempt posture 853. The an to form a societal consensus frоm However, single regulation. state we refer appeal grant from a regulation merely to the to show that Atkin- officials for lack of evidence of fu proof has son offered some of a societal con- harm, Appeals ture allowed the Court of sensus. Proof of a might national consensus sufficiency evaluate the of the evidence. See include, alia, regulation inter the federal appellee id. produce If can evidence of fu protects public employ- which and federal harm, may ture he be able to recover mone workplaces: ees from ETS in all federal tary damages. Fontroy, See 150 F.3d at 244. Pursuant to Executive Order "Pro- However, problematic quantification tecting Employees Federal and the Public damages those future is not relevant to Exposure From to Tobacco Smoke in the present inquiry concerning whether the un CFR, (3 Workplace” Comp., Federal derlying right es 216), p. policy it is the of the executive tablished so that a reasonable official branch to establish a smoke-free environ- subjected would know appellee that he to the employees ment for Federal and members Moreover, risk of future appel- harm. even if public visiting using Federal facili- lee is compensa unable to establish a smoking products ties. The of tobacco tory damages, may he be entitled to nominal owned, prohibited space in all interior rent- Slavic, damages. Pryer See v. C.O. 3 ed, or leased the executive branch of the 448, (3d Cir.2001) ("Where a constitu Government, any Federal and in outdoor deprivation inju tional has not caused actual areas under executive branch in control ry, damages an award may of nominal be front of air intake ducts. appropriate.”). 101-20.105-3(a). § 41 CFR ‘evolving that can offend stan- indifference knew to- appellants ker demonstrate Eighth of the decency’ of violation Additionally, dards dangerous. smoke was bacco 106, at 97 S.Ct. 285. Amendment.” Id. Atkinson’s upon relied District Court the or wrote spoke that he either statements medical alleged a serious Atkinson has regarding unreasonable appellants to all deliberately were appellants need to which experiencing. he was ETS explained As this Court indifferent. Institu County Correctional Monmouth Injury 2. Present Claim Lanzaro, 834 F.2d 326 Inmates v. tional (3d Cir.1987), claim “The standard enunciated present injury Atkinson’s requires delib clearly two-pronged: ‘[i]t in a grounded also is Estelle exposure ETS prison the Although part on the of right. erate indifference established constitutional prisoner’s med only prisoner’s requires risk of officials and it the Helling dealt ” 346, harm, quot Id. at Court ical needs to be serious.’ Supreme future the (3d Keve, 158, analyzing ing the framework for West established Cir.1978). has de Although harm in Estelle v. Gam this Court claims of if ble, need as serious it has 50 L.Ed.2d fined a medical 429 U.S. (1976). Weaver, requiring as diagnоsed by physician 45 F.3d at 1256. been See Weaver, treatment, “Es directly on-point, recognized: the we also have In a case ‘unnecessary if Eighth Circuit clear that Appeals of telle makes Court infliction pain,’ of ... results as held that Estelle wanton deliberately delay pro denial or in the consequence officials could not be prison care, existing serious medical the medi prisoner’s adequate indifferent to vision of nature contem by ETS. Id. at 1256. cal need is of the serious medical needs caused Eighth Court’s denial of Amendment.” Id. affirming plated In the District immunity suffering resulting officials from a 347. Needless stated, care, claims simple Court “Such medical which does the Weaver denial Supreme purpose, is in recognized any penological were first not serve ago.” contemporary two decades Id. at standards of Court almost consistent with decency Eighth ‍‌‌‌‌​‌‌​​​‌‌​​​‌​‌​​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌‍and thus violates the See id. Amendment. Estelle, In Court concluded Weaver, for the Appeals the Court that deliberate indifference to serious med- specifically recognized that Eighth the un- Circuit prisoners ical needs of constitutes dizziness, nausea, headaches, vomit- necessary pain, wanton infliction of severe stemming difficulties ing, breathing Amendment. which violates constituted a seri- exposure 285. The Estelle need, required medical which removal that even in less serious ous recognized cases, prisoner smoking from a environ- prisoner experi- where the does not death, ment under the Amendment. Id. lingering ence severe torment or Similarly, Ap- unnecessary suffering is at 1254. other Courts the infliction of recognized that an illness aris- decency. peals standards of have inconsistent with from an inmate’s to ETS can Specifically, ing id. at 97 S.Ct. 285. See a serious medical condition. Supreme Court stated: “In order to constitute (“[Pris- Alvarado, claim, See, 267 F.3d at 651 cognizable e.g., must state stated an Amend- sufficiently complaint or omissions harm- allege acts oner's alleged claim when he that because ful evidence deliberate indifference to ment indiffer- only It officials’ deliberate serious medical needs. such

267 (6th ence, 734, Cir.1992). being exposed he was to levels to F.2d 735-36 The Hunt asthma, Court aggravated which his chronic determined that: ETS health, thereby existing his endangering “Medical consequences of tobacco smoke Eighth claim as an recognized Amendment do not differ from other prob- medical Estelle v. in twenty-five years ago violation allergic lems. Prisoners to the compo- Gamble....”);8 Reynolds, Hunt v. smoke, 974 nents of tobacco or who can at- Therefore, points 8. out that The dissent the Seventh Cir- we refuse to hold as a matter of reject- cuit decisions of Henderson and Oliver law that symptoms Atkinson's were insuffi- present injury ciently ed claims similar to Atkinson’s serious. prisoners because the cases those were The dissent support cites to other decisions to prove general that their proposition unable medical needs were its the tide has Henderson, sufficiently against serious. See 196 F.3d turned ETS claims Courts of 846; Oliver, Again, at 77 at Appeals. F.3d in our Spurlock, See Richardson v. 260 495, engages (5th Cir.2001) view the dissent in the sort of evi- F.3d (affirming Dis- weighing dence that we are prisoner's forbidden from trict Court's dismissal of ETS claim Johnson, 313, undertaking by "frivolous”); Columbia, 515 U.S. as Scott v. District of Ziccardi, 61; 940, (D.C.Cir.1998) S.Ct. 2151. See 288 F.3d at see 139 F.3d (reversing Sanders, (refusing also 60 F.3d at 487 injunction to con- District mandating Court's smoke- argument ap- sider “insufficient evidence” plaintiffs). on free environments for Both cases peal qualified immunity from denial of distinguishable one. In Richardson, prisoner's motion for prisoner's exposure for was at claim). Moreover, the Oliver Court did best de Appeals minimis and the Court of symptoms not conclude that such were insuf- apart Fifth Circuit set it from cases ficiently prisoners serious as a matter of law. See Oli- where were housed in a severe ETS ver, (“On record, 77 F.3d at 161 this Oliver environment: subjected has not demonstrated that he was two Fifth [T]he Circuit cases that have rec- punishment.”). ognized cruel and unusual potential As the dis- ETS-based claim, clearly explained, sent in Oliver the entire Amendment to second- panel agreed prisoner's allegations that the substantially hand smoke was more severe (which Atkinson's) are similar to satisfied the alleged by and sustained than that Richard- requirements Hunt, 882, of Estelle: Whitley son. See 158 F.3d (5th Cir.1998) (the disputes allegations No one shared liv- Oliver’s Gamble, smoker); ing quarters enough City satisfy were Rochon v. Estelle v. (5th Cir.1997) Angola, 50 L.Ed.2d 251 (1976), (the inmate "required Farmer and the other to live and work Amendment cases. Both here and in the in 'environments filled with tobacco contrast, ”). lower court the issue has been instead smoke’ Richardson does disputed smoker, whether there were living quarters issues of fact. not share with a nor light, Viewed in this it is clear that there is does he work in a smoke-filled environ- dispute severity material of fact about the only alleges ment. He that he .had to sit . problem, of Oliver’s asthma which in during turn near some smokers a bus ride on dispute raises a material of fact about "several occasions.” We do not believe whether the society officials were deliber- considers this treatment to "vi- ately indifferent to his contemporary serious medical olate[ ] standards decen- cy-” needs. Oliver, (Wood, J., dissenting) 77 F.3d at 161 F.3d 498-99. Unlike Richardson and Scott, (emphasis original). Although the Court of the issue in this case does not involve a Appeals prisoner's found the complete exposure. Henderson alle- ban on all ETS Such law, gations (or may insufficient as a matter of impractical impossible) we ban be Here, believe it is clear that implement. breathable air that will officials to we constantly subject susceptible prisoner merely conclude that the District Court cor- allergic to severe rectly reactions is the sort of "min- determined that the level of ETS to imal civilized measure of life's necessities” which Atkinson claims he was protects. symptoms justify See the denial of Farmer, immunity. 114 S.Ct. 1970. ETS, simply walk out of prisoner cannot conditions their serious medical tribute smoke, appropriate are entitled to a sus cell whenever he wishes. When his treatment, may include cell, which medical confined to a prisoner is ceptible hov- where smoke places from removal space, with a “constant” small and confined will adhere to .... Thus we ers” time, period an extended smoker for to ad- adopted by every circuit position, may transform what would symptoms such issue, Eighth that the Amend- dress annoyance into a passing otherwise be violated objective component is ment’s Additional ongoing medical need. serious a serious forcing by prong fulfilled the second ly, Atkinson has free environ- need for a smoke medical by demonstrating that the test of Saucier’s an inmate his cell with ment to share right clearly was who smokes. Hunt, and Estelle Courts by the Weaver Id., Thompson, 941 Steading v. quoting his own claim arose 1998— on-or before (7th Cir.1991). F.2d Estelle, 1999. See appellants cannot conclude We (“We that deliber therefore conclude immunity. Atkin qualified entitled to to serious medical needs ate indifference prong first has fulfilled Sauciers son ‘unnecessary prisoners constitutes immunity alleging a qualified by denying ... pain,’ proscribed infliction of wanton established constitu violatiоn of Weaver, Amendment.”); Eighth and Al right. both the Weaver tional As (recognizing that severe F.3d at 1256 point varado Courts out the Constitutional headaches, dizziness, nausea, vomiting, and alleged by Atkinson was established right expo from breathing stemming difficulties ago by two decades over a serious medical sure to ETS constitutes Alvarado, 267 F.3d Estelle. See need, requires pris which removal of the Weaver, 651; at 1256. Atkin under smoking oner from a environment complaint alleges that he son’s amended Amendment); Hunt, 974 F.2d indifference, with deliberate exposed, was (concluding prisoner at 735-36 could state smoking in his cell for over to constant injury exposure); claim for ETS months and as a result suffered seven Alvarado, 267 at 651-52 see also F.3d headaches, nausea, eat, an inability (“[Prisonerj’s an complaint stated pains, difficulty breathing, numbness chest alleged claim he when limbs, teary eyes, itching, burning in his officials’ deliberate because dizziness, throat, skin, coughing a sore indifference, being to lev he was de production sputum. dissent aggravated els of ETS which his chronic symptoms “causing these as dis scribes asthma, thereby endangering existing hay comfort somewhere between that health, recognized a claim as an and the common cold” and notes fever twenty-five years Amendment violation people prison voluntarily not in “millions ”).9 .... More ago Estelle Gamble every day similar levels of risk tolerate Rizzo, over, examining physician, Dr. second-hand and numerous smоke symptoms possi that these However, has concluded unlike individu other sources.” expo- Atkinson’s voluntarily expose bly precipitated themselves to were als who as- Although postdates time when the constitutional which Atkinson Alvarado accrued, we cite to twenty-five Atkinson's cause of action established over serts that, case to as the Court of demonstrate years ago in Estelle. recognized, Appeals for the Seventh Circuit sure to ETS.10 The District Court found the Saucier test for immunity is that deliberate indifference to these al- the First right Amendment of prisoners to symptoms leged constituted a violation of petition the court. See Milhouse v. Carl- law, clearly agree. and we At- son, (3d Cir.1981). 373-74 kinson alleges when he tried to seek Milhouse, In this Court held prison- that a infirmary at the help prison treating the alleging er subjected he was to a responded nurse that she unable to series of eonspiratorially planned disciplin- transfer him to a cell with a nonsmoking ary actions in filing retaliation for a civil Similarly, roommate. pro- Atkinson has rights against suit prison officials stated a duced evidence that after telling prison cause of action for infringement of the officials about his to ETS no sensitivity prisoner’s First right. Id. change was made in housing conditions. Here, appellee’s complaint states a similar This evidence demonstrates deliberate in- claim, and therefore meets the first part of part prison diffеrence on the officials. by the Saucier alleging test a violation of a Farmer, See U.S. recognized right. (“[A] prison official cannot be found under liable the Amendment for As to the part second of the Sau denying inmate humane conditions of inquiry, cier the Milhouse confinement unless the official knows of prisoner’s established a right to access the disregards and an excessive risk to inmate courts so that a reasonable prison official safety....”). health or would know that he right violates this if he against prisoner retaliates for filing a B. The Retaliation Claim lawsuit. The Milhouse Court stated: Appellee appellants asserts that “The of access to the courts must be him in harassed retaliation for filing his ‘adequate, effective meaningful,’ ... Appellants ETS lawsuit. contend that freely and must be exercisable without they are entitled to qualified immunity.11 hindrance or fear of retaliation.” Id. at (internal claim, respect omitted), With to this citation quoting right implicated Smith, prong 817, 822, under first of Bounds v. 10. The points dissent contends that Dr. Rizzo’s affi- dissent also out affidavit of Dr. This, davit undermines Atkinson's claim. Keith Ivens Aside weakens Atkinson's claim. however, from the weighing matter that the dissent takes this Court into the forbidden territory weighing. supporting of evidence evidence the District Court's Ziccardi, determination in contravention of 11. The basis for their claim is not clear. In the dissent misconstrues Dr. Rizzo’s state- brief, appellants their admit that the law re- following: ments. Dr. Rizzo noted the garding retaliation is established: "It Roger cigarette Atkinson is a former is well-settled law that correctional officials diagnosed smoker who was with childhood against cannot retaliate inmates due to the may symptoms persis- asthma and have filing inmate's of lawsuits with the court." passages airways tent reactive nasal 22.) (Appellants' Appellants point Br. at response based on his to sea- evidence appellee and admissions that con- changes temperature quali- sonal and air However, tradict his retaliation claims. we normal, ty. spirometry currently His but jurisdiction weigh lack the evidence be- preclude presence this does not of air- cause the Court's District determination that way sensitivity. record this case (A.127). anything, supports If this notation genuine raised a issue of material fact was not particularly Atkinson's claim that he is sensi- required by a final decision as 28 U.S.C. Johnson, quality tized to air seriously § and that ETS 1291. See underlying exacerbates his condition. The S.Ct. 2151. (1977). liability predicated In wrongs; 52 L.Ed.2d 72 Mil cannot be

house, solely respondeat on the su- alleged operation of prisoner ... can perior. Personal involvement be violating rights pre ficials were personal di- through allegations shown venting celebrating religious him from knowledge acqui- rection or of actual Thereafter, holidays. Id. at 372. ”). Rode, .... a civilian em- escence allegedly officials transferred ployee Pennsylvania State Police cell house and commit less desirable joined Thornburgh and State Governor him revenge against ted other acts of for Attorney General Zimmerman as defen- Although the Dis filing the lawsuit. Id. in against dants a S 1983 retaliation suit trict First Amend Court dismissed the her This affirmed superiors. Court claim, ment retaliation this Court reversed that griev- District Court’s determination “If stating: prisoner] [the were able ances filed with officials’ state offices were infringement of his amend prove first prove knowledge insufficient to actual and courts, ment of access to the he acquiescence by the state officials. See successfully would state a cause of action (“In large id. at employing state arising under the constitution.” Id. at many employees, contrary thousands of 374. subject holding po- would the Governor to Appellee has a claim asserted similar in in liability any tential case which an Milhouse, that in officials took merely aggrieved employee transmitted a retaliatory against filing actions him for complaint to the Governor’s office of ad- rights against Appellee civil lawsuit them. ”). ministration .... claims he was moved to administrative segregation, humiliated being Appellants suggest depo forced to that the unnecessarily, disrobe denied food and ac- and interrogatory sition answers of a sin advice, legal gle prisoner cess to materials and and are not sufficient to establish genuine threatened and subduеd the use of ex- issue of material fact as to force, all in revenge filing supervisory cessive his whether had appellants ETS claim. Milhouse actual knowledge acquiesced of and in the actions, retaliatory that such if are proven, alleged commission of the constitutional Thus, legal. prong Saucier’s second torts. Although appellants couch this ar appellants gument satisfied and are not entitled to as immu relating qualified one qualified immunity. nity, this is the weighing sort of evidence

that we given cannot entertain our limited The Supervisory Appellants C. Johnson, jurisdiction on appeal. this See Parker, Supervisory appellants Phelps, case, present the District concluded Williams, Taylor that appel- contend ap there is sufficient evidence that lee failed to evidence sufficient to pellee spoke either wrote or to each su personal demonstrate in involvement pervisory regarding defendant both his actual knowledge by alleged them of the exposure to and the retaliatory allegedly constitutional torts committed by appellant Way. harassment lackWe Green, by appellants Way and there- jurisdiction to evaluate the sufficiency of fore that they qualified are entitled to im- this evidence. See id. munity. Dellarciprete, See Rode v. (3d Cir.1988) (“A F.2d Alternatively, appellants defen- contend that rights dant a civil action requires must have Rode us to rule as a matter of law personal alleged involvement in the correspondences that such or conversa- do not constitute sufficient evidence appellants tions decide whether in superviso- knowledge acquiescence. actual ry positions qualified entitled to immu- We, however, that nity conclude Rode is factu- on all claims they because lacked no- ally from the distinguishable present case. tice of the underlying events. I part on and the Attorney The Governor General but one majority issue. The holds that that case were much farther removed from prison officials are not entitled to committing the state officials alleged immunity housing an after inmate in a than supervisory torts prison where he is to second-hand Here, appellants only Taylor smoke, this case. causing discomfort somewhere be- Moreover, holds state-wide office. hay tween that of fever and the common governor heads entire Further, executive cold. majority calls this con- branch of a state’s government; Taylor is clusion “clearly law, established” federal charged oversight specific of a state meaning that a reasonable official entity responsible housing prisoners. should have known that we would decide scope responsibilities The of his are much way, the case this even though the circuit governor more narrow than that of a or courts have reached numerous differing attorney general, logically state and de- results on this issue and there no con- particularized scrutiny mand more of indi- trolling precedent. majority The miscon- complaints. Similarly, vidual the other su- strues the Supreme Eighth Court’s pervisory appellants have even narrower and, Amendment jurisprudence, fortiori, responsibilities as in a chain links of com- wrongly deems its “clearly outcome estab- single prison. mand within a We cannot purposes qualified lished” for immunity. say supervisory as matter of law that the I respectfully dissent from the reasoning appellants did not have actual knowledge holding on this issue. appellee

when produced has evidence that plaintiff The alleged this case has they did. to second-hand cigarette smoke was cruel and punishment unusual IV. CONCLUSION Eighth violation of the Amendment. express We no view as to appel- whether The recognized Court has that a lee objective ‍‌‌‌‌​‌‌​​​‌‌​​​‌​‌​​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌‍will be able to establish the circumstance, prisoner may, in right subjective elements of his ETS claims bring such a claim in federal court. The prove or his other claims. however, Court recognized, pris- also qualified on officials are entitled to immu- reasons, foregoing

For the we affirm the nity from suit unless their actions violated appellants’ District Court’s denial of mo- right established constitutional tion for with respect to plaintiff. Because the record with re- Atkinson’s retaliation and exces- spect support to this issue does not deny- sive force claims. The appeal of the su- ing qualified the defendants’ motion for pervisory appellants is dismissed for lack immunity, I would reverse the decision of jurisdiction.

the District Atkinson’s AMBRO, Judge, Circuit Dissenting Amendment claim.

Part. Qualified Immunity agree my

I with colleagues appel- lants are not entitled to qualified immunity majority The states the correct test for Katz, on Atkinson’s retaliation and excessive immunity from Saucier v. claims, jurisdiction 194, 200-01, force and that we lack 533 U.S. 121 S.Ct. 150 said, not mandate (2001). “the Constitution does whether We ask first

L.Ed.2d 272 Id. at 101 S.Ct. prisons.” a con- comfortable alleges facts that state plaintiff yes, If the answer violation. stitutional claimed is ask whether

we condi- particular whether a deciding established, that “it would be meaning Amendment, we tion violates the that his con- officer clear to a reasonable subjective first to our look must he con- unlawful in the situation duct Georgia, 433 See judgments. Coker Not- 121 S.Ct. 2151. fronted.” Id. 584, 592, 2861, 53 L.Ed.2d 97 S.Ct. U.S. of this its accurate statement withstanding (1977) (“Eighth (plurality opinion) test, majority it. misapplies be, should not judgments Amendment be, subjective merely the views appear to Allege Step the Facts Do I. One: Justices; judgment should of individual Eighth Amendment Violation? by objective factors to the be informed extent.”). The best possible maximum Eighth Amendment Standard A. The “cruel and indication that a condition is prohibits pun- among the state is' a consensus unusual” “evolving stan- ishments inconsistent Virginia, Atkins v. legislatures. See decency progrеss that mark the dards of 2242, 2247, 304, 122 U.S. Gamble, society.” Estelle v. maturing aof (2002) (“[T]he ‘clearest and L.Ed.2d 97, 102, L.Ed.2d objective of con- most reliable evidence Dulles, (1976) 356 (quoting Trop v. 251 legislation values is the enact- temporary 101, 590, 86, 2 L.Ed.2d 630 78 S.Ct. U.S. ”) (cita- by country’s legislatures.’ ed (1958)). prison of confinement Conditions omitted). Only where there is a tion only if Eighth they violate the may we consider whether our consensus minimal civilized inmates of the “deprive towards judgment tips own the balance Rhodes v. measure of life’s necessities.” a violation. Id. finding constitutional 337, 347, 101 S.Ct. Chapman, 452 U.S. (“Thus, consensus, a involving in cases (1981). Thus, 2392, L.Ed.2d 59 69 ”) ‘brought to judgment our own bear.’ a in which inmates are example, prison omitted). (citation guards, serve as armed four to recruited to not automati- Subpar medical care does window- inmates are crowded into eleven cally Eighth violate the Amendment. x during periods 10É less 8É cells a malpractice “Medical does not become isolation, sleep inmates punitive those merely violation because the with hepatitis floor mattresses infested Estelle, a 429 U.S. at prisoner.” victim is diseases, and the in- and other infectious “cruel and unusu- 97 S.Ct. 285. To be 1,000 “grue” only mates receive calories al,” care, prison condi- medical like other Eighth day, to eat each violates tions, “evolving standards must contravene Finney, Amendment. Hutto v. 437 U.S. Thus, only decency.” Id. “acts or omis- 678, 682-83, 2565, 57 L.Ed.2d 522 98 S.Ct. de- sufficiently sions harmful evidence (1978). hand, prison the other a On to serious medical liberate indifference than living space which inmates have less Eighth can violate the Amendment. needs” physi- deem for their experts appropriate subjec- objective Id. This test contains health, cal and the hous- and mental components. tive designed than it was es more inmates hold, Objectively, present must not violate the Amend- does Rhodes, 348-49, A medical needs.” serious medi- ment. 101 “serious diagnosed cal need is “one that has been 2392. As the Court has S.Ct. Requirements physician requiring Injury a as treatment or 1. for Present lay person that is so obvious that a one Claims easily recognize necessity

would A injury alleges claim that expo- attention.” Monmouth County doctor’s sure to poses prisoner’s a risk to a Lanzaro, v. F.2d Corr. Inst. Inmates existing medical needs. It is a standard (3d Cir.1987) (citation omitted). 326, 347 condition-of-confinement claim governed A medical need is also serious where the principles the Supreme Court es- denial of treatment would result Thus, tablished Estelle and Farmer. “unnecessary and wanton infliction of prisoner allege sufficiently must serious Estelle, pain,” U.S. (the objective medical need component) “life-long permanent handicap or and deliberate by prison indifference offi- Lanzaro, loss,” 347. (the cials in response subjective compo- nent). Subjectively, prison officials must exhib-

it “deliberate indifference” to those needs. standard, Requirements Injury

Under that for Future Claims official cannot be found liable deny- under the Amendment for A injury future claim alleges that an ing an inmate humane of con- conditions inmate’s ETS exposure creating a risk finement unless the official knows of and of future medical grave harm so that soci- disregards an excessive risk to inmate (or ety will not condone its prisoners any- safety; health or the official must both else) being one exposed to it. Helling be aware facts from which the infer- 25, 36, McKinney, could ence be drawn that a substantial (1994). 125 L.Ed.2d 22 Helling analyzed exists, risk of serious harm and he must only injury future ETS claims.1 An in- also draw the inference. mate whose packs cellmate smoked five cigarettes day sued under the Brennan, 825, 837, Farmer v. U.S. injunctive Amendment for 1970, 128 (1994). relief and com- S.Ct. L.Ed.2d 811 pensatory damages, alleging that his con- B. Environmental Tobacco Smoke exposure stant to damaged ETS his health. (“ETS”) Claims 28, Id. at 2475. Magistrate S.Ct. The Occasionally prisoners bring Eighth entered a directed verdict for the Amendment alleging expo- suits that their He although officials. reasoned that smoke, sure in to plaintiff second-hand could hypothetically prevail on his known as environmental tobacco smoke by showing claims serious medical needs (“ETS”), needs, constitutes “cruel and unusual and deliberate indifference to those claims, ‍‌‌‌‌​‌‌​​​‌‌​​​‌​‌​​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌‍punishment.” they These as support he could not either prong with called, in come two sufficient evidence. The of Appeals Court varieties — injury claims injury and future claims— in part, finding Magis- rеversed that the and are rejected measured different standards. trate properly present injury Atkinson’s suit involves both. claim but plain- should have allowed the complaint Helling alleged present holding McKinney 1. The in Eighth had stated an injuries, and future but the on Amendment claim which relief could be injury focused on the future claim. See 509 granted by alleging compelled expo- that his 31, (stating pri- U.S. at 113 S.Ct. 2475 “the poses sure to ETS unreasonable an risk to his mary question grant- on which certiorari was health.”) added). (emphasis ed” to be “whether the court below erred in circum proceed theory example, to on the that the of ETS.” Id. For in the tiffs suit exposed Helling to which he was level of ETS stances of the case before the Court, posed an intolerable risk to his “[p]lainly relevant to this determi future health, injury claim. Id. at i.e. future prisoner] nation the fact that has [the is 28-29, 113 prison to [from another] been moved one longer cellmate of a no five- affirmed, Supreme Court it held Also, pack-a-day smoker.” Id. the fact that, theory, prisoner forced to inhale pris that the director of the Nevada state packs day five of second-hand smoke system subsequently adopted on had a for conceivably might face future health risks mal smoking policy meant that sufficiently to violate the serious observed, that the new example, possible policy [i]t Amendment. It for will be 682, Finney, way that Hutto v. administered that will minimize high prisoners prisoner] 98 S.Ct. risk that the risk to and make it [the eventually hepatitis would contract and ve- impossible prove for him to that he will their nereal floor be disease unreasonable risk with communal helped support finding mats of an respect to his future health or he is Helling, Amendment violation. injunction. now entitled to an Similarly, U.S. S.Ct. 2475. addition, Id. at 113 S.Ct. 2475. unreasonably high ETS levels could create “determining prisoner’s] whether [the a condition of confinement that “is sure or conditions of violate the confinement very likely to cause serious illhess and Eighth requires Amendment more than a suffering needless the next week or month inquiry scientific and statistical into the Id. In year.” light possibility, of this potential seriousness of the harm and the the Court remanded for the District Court injury likelihood that such to health will the plaintiffs injury to evaluate future actually by exposure be caused to ETS.” claim on the Id. at merits. Id. must society Courts “assess whether (“We juncture cannot rule at this considers the risk that the prisoner com- impossible McKinney, it will be on plains grave of to be so that it violates remand, prove contemporary decency standards of to ex- ETS.”). violation based on pose anyone unwillingly to such risk.” Helling established a strict test Id. way, Stated another “the Eighth Amendment ETS claims. The must show that the risk which he com- Court stated the plaintiff remand plains today’s society is not one that required “prove subjective was to both the chooses to tolerate.” Id. objective nеcessary prove elements to subjective As to the second factor —the an Amendment violation.” Id. at factor known as deliberate indifference— 35, 113 2475. As the opinion Court’s the district court make its conclu should

reveals, significant bears bur “in light prison sions of the authorities’ claim, in establishing dens a viable and a conduct, may current attitudes and which district court must undertake number of changed considerably have since the judg inquiries to determine plaintiff whether a ment of the Court of In Appeals.” Id. produced sufficient sup has evidence to Helling, Court noted that m . port injury a future clai adopted smoking because Nevada had objective toAs the first —the factor—a policy, prisons, for its this “will bear heavi plaintiff ly “must show that he himself inquiry on the into deliberate indiffer ence,” being exposed unreasonably high levels possibly making it more difficult to prison respond- inquiry, show that officials are statistical his risk of future harm ETS, dangers reducing of ing to the grave is “so that it contemporary violates exposure Finally, inmates’ as a result. decency standards of to expose anyone inquiry into this factor also would be “[t]he unwillingly 34, 36, to such a risk.” Id. at appropriate argu- an vehicle to consider 113 S.Ct. 2475. regarding

ments the realities of ad- majority The decides what conditions so- ministration.” Id. ciety will not prisons tolerate in its without Application considering what society primarily C. Law to Atkin- itself—

son’s Case through the decisions of legislators its locаl politicians said topic. on the —has in my underwhelming This case view is majority’s The attempt to assemble a so- to either the regard or future cietal consensus citing consists of its injury allegations claims.2 Atkinson’s by executive order the then-Governor of “constant” for approxi- Delaware restricting smoking in some mately theoretically may seven months state buildings, exempting prisons. but claim, present a but the evidence viable 1989). Del. Exec. Order at P. 6 (Apr. by identified the District Court is insuffi- Even without the exemption, a sin- cient to establish an gle order one violation. Atkinson cannot show that his executive from state is obvi- ously inadequate current condition creates a “serious medi- of a national evidence need,” that, Moreover, following cal a scientific and light consensus.3 pris- repeatedly majority my anyone 2. The scolds dissent to be to sufficient environ- entering territory” the "forbidden of evi- symptoms mental tobacco smoke to cause the dence-weighing. This assertion is contradict- Plaintiff suffered.” District Court’s find- by very language majority ed ings cites for that the levels of ETS to which Atkinson support. City Philadelphia, In Ziccardi v. exposed may have been both unreason- (3d Cir.2002), we stated that contrary able and to current standards of decency juris- appellate thus fall within our jurisdiction lack we to consider whether the diction "to review whether the set of facts correctly district court identified the set of by identified thе district court is sufficient facts that the record is establish a violation prove; jurisdic- established possess sufficient to but we right." constitutional tion to review whether the set of facts iden- by tified court is district sufficient May In 2002 the Delaware General Assem establish a violation of a bly passed significantly tightened restrictions right. smoking public spaces. C. words, Del. other Ziccardi instructs that § amended 2002 Delaware Laws cases where the district court denied sum- (S.B.99) (effective Ch. 275 late November mary finding judgment by genuine issues of 2002). fact, certainly possible It that other appeals material court does not have According states will do the same. to the jurisdiction questions (e.g., to review of fact however, Control, Centers Disease as of plaintiff request, did the and the defendant 16, 2002, refuse, cell), only October California has elimi nonsmoking a transfer to a it but smoking virtually jurisdiction public nated all questions its does have to review places, including (e.g., bars and restaurants. See law on the basis of the facts identified court, Exposure plaintiff Tobacco Smoke adequately the district did the Environmental Sheet, http:// allege and Cotinine Levels—Fact violation of bacco/research_data/environ- right). www.cdc.gov/to mental/factsheet_ets.htm Here, (last "gen- January the District Court concluded that visited (1) 2, 2003). Nevertheless, uine issues of material fact exist as to: Delaware's statute only "any whether Plaintiff was to unreason- enclosed аrea to covers indoor ETS; (2) high ably general public levels of and whether it is which the is invited or in contrary decency general public permitted,” to current of and standards which the is in con- exemption, majority’s extrapolation only report The statement (let national) ceivably Atkinson’s claim is Dr. supporting any alone a consensus is “impression” “it Rizzo’s ambivalent that is generous of Delaware’s status as a view probability within reasonable medical that public opinion.4 bellwether of symptoms itchy burning eyes, and chest throat, sore pains, persistent cough with Injury 1. Present Claim sputum production, paroxysms coughing to present Atkinson has failed evidence pre- and resultant headaches would all [be] jury reasonably from which a could find a cipitated by exposure to second-hand medical need. His condi- physical serious An impression diagnosis. smoke.” is not a any example, tion harm. For Atkin- belies were, if it it for Atkin- unavailing Even son does not suffer asthma attacks in re- only report suggest son. Not does the not sponse to He does not seem ETS.5 symptoms that Atkinson’s constitute “seri- Indeed, require medical treatment. no needs,” say ous medical it does not even doctor has ordered that Atkinson be them, that that only ETS caused it is in placed non-smoking area. “within probability” reasonable medical symptoms that these would be caused undermining Further Atkinson’s exposure to Instead of “it ETS. is reason- injury claim is the dearth of medical evi- ably medically “it certain” —or even is rea- dence in At- report his favor. from . sonably medically probable,” Dr. Rizzo doctor, Rizzo, lacking kinson’s Dr. is so if possible writes as it is that Atkinson’s that it might as well have been written for symptoms larger fall within the set of says It the defendants. that Atkinson’s medical probability. pituitary surgery, not second-hand smoke, causes his chronic It headaches. The affidavit from the prison medical also observes Atkinson smoked for director, Ivens, Dr. Keith weakens Atkin- twenty-seven years, and that symptoms his son’s claim even further. Dr. Ivens writes not change during year did he was complained Atkinson never him isolated in prison. smoke second-hand during secondhand smoke several exami- It “symptoms concludes Atkinson has nations, symptoms that Atkinson’s are con- persistent passages reactive nasal allergies,” sistent with “seasonal and that airways response are, fact, based on his they likely allergies caused changes to seasonal temperature because the unit he where “has resided for quality” (1-F) air “spirome- Atkinson’s year more than the past is a smoke- try [lung currently normal.” function] free environment.” Dr. Ivens concludes: added.) (Emphasis “I can see no medical evidence that sec- Moreover, prisons. therefore workplaces” lays from ETS in all federal out smoking public laws of few states do not just speculative majority's how rationale amount to a national consensus. With rе- might is. That the District Court have found test, gard prong to the second of the Saucier evidence of a societal consensus on ETS with- represent even if these laws did a new na- Regulations the Code of Federal is not to consensus, they nothing tional do to make say that it did. "clearly that consensus established” in 1998 and 1999 when the events in this case took 5. Atkinson does hint that he is asthmatic place. asthma," that he had but "childhood neither he nor doctors contend that evidence majority's 4. The statement in footnote 7 that support could a claim that he suffers from "[p]roof might of a national consensus in- clude, alia, asthma now. regulation inter the federal which protects public employees and federal death, adversely affecting or non-fatal heart attack or ond-hand smoke stroke. Lung develops cancer risk Roger slowly.” health of Atkinson.” more satisfy Helling. This letter does not Dr. the District find- Fully accepting Court’s study Wells did not Atkinson himself to cannot be the ings, symptoms Atkinson’s particular determine his increased risk predicate injury for a disease; future he merely generalized They Amendment violation. se- on a based selected set of studies from enough to constitute a serious medical vere journals. medical The Seventh Circuit has Every prisoner need. faces discomforts specifically rejected the substitution of avoid, that he would rather but that prison generalized knowledge spe medical not violate the Constitution. nonetheless do cific medical examination. See Henderson Rhodes, See 452 U.S. S.Ct. (7th Sheahan, Cir. 1999) (“To having damages avoid awarded conjec on the of mere speculation basis or Injury 2. Future Claim ture, only it that makes sense the medical injury future claim fares no Atkinson’s expert should be to a testify able rea mentioned, already Helling As better. degree certainty sonable medical that that a claim under the held successful ETS particular plaintiff himself faces the objec- meet two Eighth Amendment must increased risk of harm whatever that level It than a requires tive criteria. “more risk.”). Here, when Dr. attempt Wells inquiry scientific and statistical into the ed to extrapolate the results of outside potential seriousness of the harm and the Atkinson, studies to he did not even ven injury likelihood that such to health will suggest ture to a level of increased risk for actually by exposure be caused to ETS.” heart disease or And his predic stroke. 2475. “[I]t also lung tion for cancer risk is even more requires society a court to assess whether risk, That ambiguous. says cryptically, he prisoner risk that the com- considers the “develops slowly.” more plains grave of to be so it violates Moreover, Helling requires “more than contemporary decency standards of to ex- inquiry a scientific and statistical into the pose anyone unwillingly to such a risk. potential seriousness of the harm and the words, other must show that injury likelihood that such to health will complains the risk of which he is not one actually by exposure be caused to ETS.” society today’s chooses to tolerate.” (emphasis Id. added). grave The risk must “be so that it The District “scientific and sta- violates of decen- contemporary Court’s standards inquiry” generic cy expose anyone unwillingly tistical is a letter from A. to such a Wells, Ph.D., Here, risk, dangers Judson about the risk.” Id. we do not know the That ETS. letter summarizes several re- but even the studies Dr. Wells cites make demonstrating cent studies a link it no means between obvious Atkinson likely develop lung second-hand smoke and risk of heart increased disease lung smoking heart disease and cancer. Those cancer because he lived with a (or cellmates) nothing studies have to do with cellmate for several months. settings particular appears leap logic or with Atkinson’s case. It thus to conclude “Overall, I finds risk to exceed “con- say society The letter concludes: would this decency.” that for Mr. to continue in a standards of After temporary Atkinson all, not in volun- people smoke filled cell would increase his risk of millions of 278 every inquiries concerning qualified levels of risk further im-

tarily tolerate similar Nonetheless, munity.”). majority’s day from second-hand smoke and numer- (Indeed, analysis point response. more on ous other sources. millions this merits themselves.) context, In this At- smoke right clearly A is established if “it would cannot an kinson state be clear to a reasonable officer that his injury claim on his risk of future based conduct was unlawful the situation he caused ETS.6 202, confronted.” Id. at 121 2151. S.Ct. claim, present injury As with the the Qualified immunity “operates ‘to ensure analysis on majority’s this issue is uncon- suit, they subjected that before to offi majority vincing. says nary a word cers are on notice their conduct is unlaw ” — failure provide about Atkinson’s to scienti- Pelzer, -, -, ful.’ Hope v. U.S. support fic or statistical evidence in of his 2508, 2515, 122 153 L.Ed.2d 666 claim, Helling expressly requires. as And (2002) (citation omitted). if Accordingly, it no offers reason believe the risks our particular Court has not decided a alleges to which Atkinson he was (which here) question is the case and sev it grave contemporary are so violates eral other reached courts have inconsistent decency anyone of to expose standards (which relatively outcomes on similar facts unwillingly. them here7), right also the case issue clearly cannot be established. See Dono Step Right Clearly II. Two: Is the Es- Milwaukee, City van v. 17 F.3d 953 tablished? (7th Cir.1994) (“Because only two circuits Atkinson does not state an had point, reaching Because considered cases on results, opposite Amendment violation on either his we conclude that ‘the rel present claims, injury injury or future we evant law developing case was still [and] rights do not have to consider whether his key issue this case not been had ”) (citation omitted); under the Amendment were clearly settled.’ see Saucier, 603, 618, established. See Layne, U.S. also Wilson v. (“If (1999) (“If right S.Ct. 2151 no constitutional 143 L.Ed.2d 818 have been violated allega- judges disagree would were the thus on a constitutional established, necessity tions there is no question, subject police it is unfair to objec- satisfy require Because Atkinson evidentiary sup cannot motions to dismiss no requirements showing tive a serious medi- port plaintiffs' Ultimately, for the claims. unreasonably grave cal need or an risk of inju claims either or future injury present injury on either his or future rarely ries succeed unless the claims, injury we do not need to consider See, obviously e.g., intolerable. Richardson whether officials demonstrated deliber- (5th Cir.2001); Spurlock, 260 F.3d 495 ate indifference. Sheahan, (7th Henderson v. 196 F.3d 839 Cir. 1999); Columbia, Scott v. District 139 F.3d majority opinions 7. The cites a number (D.C.Cir.1998); Deen, Oliver v. 77 F.3d support prisoners of its assertion have a (7th Clark, 1996); Cir. v.Mills to be free from un- (4th Sept.5, WL Cir. levels reasonable of ETS. In most of these Granted, 2000) (unpublished). some of these decisions the court made little effort to deter- appeals decisions were from decisions on the represented mine whether the circumstances merits, interlocutory appeals health, unacceptable prisoners' pre- risk to Nevertheless, immunity they determinations. sumably because most of the cases involved dismiss, many rejected appeals rulings demonstrate that courts have motions to plainly stage summary much ETS claims and that the cir easier to survive than bеcause, judgment summary judgment, amenability cuits differ in their unlike these suits. claim, picking losing present injury for the side On the money damages considering Pendleton, the lack of controversy.”); Rogers v. medical evidence in of the Atkinson’s Cir.2001) favor, (4th (“[I]f no reasonable official could predicted have relatively Atkinson’s controlling authority there are no cases of (which symptoms minor appear to have in and if other jurisdiction question, the by been caused allergies) seasonal would have on appellate split federal courts support Eighth Amendment suit. The right ex- question of whether an asserted majority contrary, cites no case to the ists, clearly cannot established right be cases,” certainly not the “consensus of immunity qualified purposes”). 287-88, Rogers, 249 F.3d at needed to right To demonstrate that Atkinson’s qualified immunity. overcome estab be shielded from ETS was claim, injury On the future neither the lished, majority merely invokes Hell Supreme nor any other court has analysis— ing any accompanying —without stated that a particular level of ETS vio a of other that do and cites number cases the Eighth lates Amendment. Helling did in the same.8 Saucier mandates that the not conclude that the expo level ETS quiry right into whether a day sure in that case—five packs a purposes granting established for the unusual; two-person cell —was cruel and immunity be “must undertaken Court remanded for the trial case, light specific context of the not fоllowing court to make this determination general proposition; as a broad and it too inquiry. jurisdiction fact-intensive Our understanding serves to advance of the law reviewing is limited to whether the set of allow to avoid and to officers the burden of by facts identified the District Court is qualified immunity applicable.” trial if sufficient to establish violation of clear 2151. The ma U.S. ly established constitutional violation. The jority simply passes mandatory on the ex facts identified the District Court’s plaintiff amination into whether this under analysis in this case do not. the circumstances of this case had clear reasons, I respectfully For these dissent. ly Amendment not be to this level of ETS. See

Mills, 229 F.3d at 2000 WL (“Helling guarantee plaintiff *5 does not environment.”).

a smoke free example, majority primarily required For relies ‍‌‌‌‌​‌‌​​​‌‌​​​‌​‌​​​​‌‌‌​​‌​​​‌​​‌​‌‌‌‌​‌​​​​‌‌‍and referenced neither the “scienti- Keane, (2d on Warren v. 196 F.3d 330 Cir. inquiry’’ any support fic and statistical nor 1999), in which Second Circuit found that society proposition would find inmates could survive they might ETS in that levels case—whatever injury by alleging claim their future prisoners. have for its been—intolerable long-term their confinement “creates serious assertion, Contrary majority's to the I do not cursory, health risks.’’ Id. at 332. The four- recognize factually that Warren fail to page opinion Warren did not wheth consider analogous. per- procedurally lacks Warren plaintiffs alleged er the facts stated an distinguishable, violation, suasive value not because it is did mention the perform the but rather because it fails to why level of smoke that level might high analysis unreasonably Helling, be under mandated ETS claim.

Case Details

Case Name: Atkinson v. Taylor

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 21, 2003

Citation: 316 F.3d 257

Docket Number: 01-2955

Court Abbreviation: 3rd Cir.