Durham v. HoodDurham v. Hood
AFFIRMED.
Marcy E. Cook, Michael Conrad Johnson, Amy Lenore Padden, Amanda Rocque, Office of the United States Attorney, Denver, CO, for Defendants-Appellees.
Before O‘BRIEN, ANDERSON, and TACHA, Circuit Judges.
ORDER AND JUDGMENT*
DEANELL REECE TACHA, Circuit Judge.
In this pro se Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Jeffery Scott Durham appeals the dismissal of three defendants for lack of personal jurisdiction, and the grant of summary judgment on his Eighth Amendment claim. Mr. Durham was an inmate at the United States Penitentiary-Administrative Maximum (ADX), in Florence, Colorado, where he claims defendants were deliberately indifferent to his involuntary exposure to environmental tobacco smoke (ETS). Exercising jurisdiction under
*
*
*
This action originally included as named defendants Harley Lappin, Harrell Watts, and G.L. Hershberger, all of whom were Bureau of Prisons (BOP) officials located in Washington, D.C. Mr. Durham alleged Lappin, as Director of the BOP, was responsible for managing and regulating all federal penal institutions, while Watts and Hershberger, as national and regional executives, were charged with handling inmate administrative appeals. The district court dismissed these officials for lack of personal jurisdiction, finding they had insufficient minimum contacts with the state of Colorado. Mr. Durham contested this ruling and sought to transfer his case to a district where these defendants would be subject to suit. The court denied his request, however, ruling that such a transfer would simply substitute one set of defendants for another, since the transferee court would lack jurisdiction over the Colorado defendants. Mr. Durham moved the court to reconsider, but the court maintained that a transfer would not be in the interest of justice. The court reasoned that although Mr. Durham might be barred from refiling in a different forum by the applicable statute of limitations, any delay in suing these defendants in a proper court was attributable to Mr. Durham alone.
Regarding his Eighth Amendment claim, Mr. Durham moved the court to take judicial notice of various regulations and reports pertaining to ETS exposure. He cited the reports as generally showing that ETS is a cause of disease, including lung cancer, and testified that he himself experienced watery eyes, difficulty breathing, and headaches as a result of his exposure. Mr. Durham elicited consistent testimony from an expert, who was permitted to testify that ETS is a recognized cause of
The district court rejected Mr. Durham‘s claim, however, concluding he failed to show the conditions of his confinement violated the Eighth Amendment.1 The court first determined that Mr. Durham did not objectively establish that “‘he himself [was] being exposed to unreasonably high levels of ETS.‘” R., Vol. 5 at 503 (quoting Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). The court explained that Mr. Durham‘s anecdotal account of his exposure, coupled with the symptoms he claimed to have suffered as a result, provided no objective indication of what his level of exposure truly was. The court further determined that Mr. Durham failed to show his exposure to ETS violated contemporary standards of decency because he offered only his symptoms of the alleged ETS exposure and reports discussing the general health risks associated with ETS. Consequently, and notwithstanding Mr. Durham‘s documentary evidence, the court concluded that Mr. Durham could not show that he himself was put to a greater risk of unacceptable harm by some unknown level of exposure.2
*
*
*
On appeal, Mr. Durham advances the same arguments raised and rejected in the district court. He maintains the court erred in dismissing Lappin, Watts, and Hershberger because they purposefully directed their activities to Colorado, as evidenced by their operation of a nationwide BOP internet site. This internet site, Mr. Durham contends, along with these officials’ general business contacts, suffices to permit the court‘s exercise of personal jurisdiction. Alternatively, he insists his claims against Lappin, Watts, and Hershberger should have been transferred to another forum. As for his Eighth Amendment claim, Mr. Durham asserts the court failed to take judicial notice of the proffered reports and regulations concerning ETS exposure. Simply put, he says this evidence creates a fact issue whether he was exposed to unreasonably high levels of ETS.
We review the district court‘s jurisdictional and summary judgment rulings de novo. See Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159 (10th Cir. 2010) (reviewing personal jurisdiction ruling de novo); Ross v. Bd. of Regents of Univ. of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010) (reviewing grant of summary judgment de novo). After examining Mr. Durham‘s appellate materials, the record on appeal, and the relevant legal authorities, we agree with the district court‘s accurate and well-reasoned analyses.
As for Mr. Durham‘s Eighth Amendment claim, there is no merit in his contention that the court improperly rejected the proffered reports and regulations. Although the court declined to notice these materials, they were considered by the court and deemed inconsequential. See R., Vol. 5 at 505-06. Indeed, the court correctly observed that although these materials underscored the general health risks associated with ETS, they failed to objectively establish Mr. Durham‘s individual and particular level of exposure or attendant risk. See Helling, 509 U.S. at 35, 113 S.Ct. 2475 (requiring inmate to “show that he himself [was] exposed to unreasonably high levels of ETS“). And because Mr. Durham‘s anecdotal accounts of his exposure and the symptoms he claimed to have suffered as a result likewise failed to objectively establish his exposure level, the district court properly determined that Mr. Durham did not show his risk from exposure violated contemporary standards of decency. See id. 36, 113 S.Ct. 2475. Accordingly, we affirm the district court‘s grant of summary judgment for substantially the same reasons as articulated in its order dated March 11, 2010.