Harold Oliver v. Kent Deen, Francis Melvin, and Richard Gramley
77 F.3d 156
7th Cir.
1996
Check Treatment

*2 products. their The debate continues outside EASTERBROOK, Before DIANE P. the walls. inside WOOD, EVANS, Judges. Circuit country officials all Prison over the struggled growing accommodate evi- EVANS, TERENCE T. Judge. Circuit may subject dence is that ETS harmful regard The role of the federal courts in liability. always easy. them It hasn’t been instance, in prisons conditions of confinement state reports For news indicate that on uneasy prisons one. in in Conditions March Texas state of instituted Arkansas, Alabama, Mississippi anti-smoking policy prisons, led fed- includ- its Sarver, (E.D.Ark.1970); (S. 1279) F.Supp. require Holt v. relief exhaustion remedies (8th Cir.1971). aff'd, 442 F.2d 304 remedy complete even (H.R. 2468); available is not if the require showing physical Pending Congress at the end of calendar injury prior recovery or emotional for mental bills, instance, year 1995 arc to limit awards (S. 866). injury attorney § of rate fees under U.S.C. 3006A; § prospective 18 U.S.C. to limit subjective expose county jails him to sub- in Texas intent

ing death row. Several reports danger. appeal, other news Then stantial risk followed suit. by very ap- August represented indicated ban able jail counsel, because county pointed questions lifted whether sum- one *3 reportedly many inmates in this cir- problems: mary judgment appropriate caused was orange apple peel- dried Mr. contends that there cumstance. jail by plac- sneaking cigarettes into ings and in the genuine are of material fact issues Bibles, raising the ing record, them hollowed-out granting that the order requiring price pack cigarettes prison of a of on the summary judgment be set aside. easy to This is not black market $70. Summary judgment appropriate is issue, that the though the recommendation to genuine disputed are no when there provide smoking and possible prisons extent party entitled moving material fact and the is nonsmoking a reasonable areas seems to be Roger of law. v. judgment to as a matter one.3 Inc., Freight Systems, 21 F.3d 146 Yellow to mundane as it is—is close This ease—as (7th Cir.1994). successfully a mo To resist important of these issues. the intersection summary judgment, party tion for addition, highlights between the tension summary sought against judgment whom summary on the resolution of cases basis evidence, demonstrate, by competent must judgment, rather than trial. fact genuine that a exists. Anderson issue prison state inmate Harold Oliver Illinois Inc., Lobby, 106 Liberty U.S. rights pro civil action se in filed this (1986); Adickes v. S.Ct. 91 L.Ed.2d District Court for the Central United States Co., & S.H. Kress he the suit he District of Illinois. When filed (1970). “Summary 26 L.Ed.2d protective custody was in at Pontiac Cor- or simply will not defeated because motive Center, an maximum rectional Illinois securi- Roger, at intent are involved.” ty prison where he was housed from Febru- January ary 1993 until 1994. He sued Kent We review de novo the decision Deen, unit; charge of his Francis who was granting judgment. Jackson north cell- superintendent Cir.1994). (7th Bunge Corp., 40 F.3d 239 house; Gramley, and Richard the warden. Here, facts, then, favorably are the viewed that these officials violated his He contends Mr. Oliver. Eighth rights their deliber- Amendment that he Mr. Oliver’s medical records show medical needs: ate indifference his serious sys- prison In the “mild asthmatic.” is, suffers from asthma which made he medication, given Theophyl- tem he has been who when he is celled with inmate worse inhaler, help him line and a Netatroterenol condition, says, His causes smokes. cope with his In his affidavit condition. and, breath, dizziness, wheezing, shortness of doctor, said, Murray, prison Owen “While times, says despite his at nausea. He problem, asthma can be serious prison him with condition the officials housed only mild and Mr. Oliver’s condition was smokers, alleged wrongs he and for these re- life-threatening. never His condition damages. seeks hospitalization.” quired no outside summary judg- granted The district court prison no medical evidence for the officials on the basis There is ment presented, Mr. Oliver ignore did not a serious medical need record. inmates,4 who relate their they possessed affidavits of fellow did Mr. Oliver show that nor See, Kiggen, Helling mem- e.g., M. Mr. Oliver submitted Christine miss.” In Warning McKinney: along ... Second-Hand Smoke with the affidavits. The orandum of law Punishment, May New memorandum, be Cruel and Unusual but did court struck the district (Sum Eng.J. Crim. & Civ. Confinement The issue is whether mention the affidavits. 1994). mer In the were also stricken from the record. construing favorably spirit the facts affidavits, controversy 4. There is a about four nonmovant, they were not. wc will assume answer, response originally submitted in Opposition "Reply Dis- entitled and Motion in pain” of his observations condition. inmates tion be “repugnant difficulty say breathing, Mr. Oliver had conscience mankind.” wheezed, had, pains, had chest as one 106-107, 97 S.Ct. at 292. it, put symptoms inmate common “other Supreme Court recently has made occurring.” an ‘Asthma Attack’ clear Eighth Amendment cases a constitutional violation has two components. Pontiac is not the first Illinois Our cases have held that a official peni- which Mr. Oliver has At other resided. violates the when tentiaries asthmatic condition was known. requirements First, two are met. the de- Menard, says, A doctor privation alleged be, objectively, *4 must “suf- gave that instructions he should have a cell- serious,” omitted]; ficiently [citations a mate did who not smoke. The same was prison official’sact or omission must result prisons. true at other in the denial of ‘the minimal civilized mea- Pontiac, Shortly after Mr. Oliver arrived at sure life’s necessities. the medical records officer issued a memo- randum, Murray in which he Dr. said that requirement The second follows from the had a issued medical order “that he is be principle “only unnecessary celled with a cellmate.” In pain implicates infliction wanton Oliver, separate a memorandum to Mr. Eighth ... Amendment” To violate the Murray him advised that he had been issued Clause, Cruel and Unusual Punishments a “permit” nonsmoking a for a cellmate. a “sufficiently official must have culpable state of mind.” Mr. at Oliver was Pontiac for a little less - Brennan, U.S.-,-, v. Farmer 114 year. days approximately For 133 (1994). S.Ct. 128 L.Ed.2d 811 time, during that he had cellmates who approximately days smoked. For 28 he undisputed We believe the facts dem shared cell with Much of his non-smokers. onstrate that Mr. has not satisfied the the time Mr. Oliver had no cellmate —for at element; first he has not demonstrated that 1993, days plus least 164 whatever time he he has serious medical need or that he has January served in been denied “the minimal civilized measure

of life’s necessities.” Eighth prohibits The Amendment determining In judg whether punishments incompatible which are with ment we appropriate, clearly must first “evolving decency mark standards claiming. understand what Mr. He Oliver is progress maturing society.” Trop of a v. injunctive Therefore, seek does not relief. Dulles, 590, 86, 2 366 U.S. 78 L.Ed.2d S.Ct. Helling McKinney, this is not a case like (1958). 630 Prison officials must ensure that 25, 2475, 125 22 L.Ed.2d food, adequate clothing, inmates receive shel (1993), in which Court determined that ter, protection, and medical care. That ade Eighth claim Amendment can be stated to quate care falls under the medical ambit “unsafe, prevent an life-threatening condi has been clear the amendment since Estelle tion,” yet may tragic not have caused a Gamble, 285, 97, 429 U.S. S.Ct. event. The that an inmate Court found (1976). L.Ed.2d What has also been “states cause action under the regard clear since Estelle is that with petitioners alleging care, every medical denial violates the have, indifference, exposed with deliberate prohibits Constitution. Estelle “deliberate him to levels of ETS tobacco [environmental indifference to serious medical needs.” Med pose risk of an unreasonable smoke] instance, malpractice, ical for not a viola 35,At damage serious to his future health.” stated, tion of the amendment. As the Court at 2481. also S.Ct. See Goffman (7th 1995). Gross, 59 F.3d Cir. provide inadvertent failure to ade- [A]n Mr. claim he quate medical care cannot be said to con- Oliver does not that, instance, unnecessary “an stitute and wanton inflic- harmed future — required never outside other ailments. He asthma attack a severe could suffer a few fact, hospitalization, he even missed not make that claim In he could future. longer at with the medical staff appointments is no Pontiac. had He this case. Uniformly, his custo- the medi- longer regarding are no his asthma. officials present The change only a has there been cal evaluate asthma records dians. given medication and an prison policy as June mild He was in the Illinois case. dispute that the medi- a claim. He does not undermine such inhaler. which could an- proper has were a Department of Corrections cation and the inhaler Illinois in response under which inmates policy nounced a his condition. to state would be allowed situations most asserts, the additional He or nonsmok- preference their step housing him with a nonsmoker ing cellmate. always taken and that this Pontiac was not it would question is not whether also medical need.” his “serious exacerbated enlightened to been better or Pontiac, Mr. Oliver arriving after Soon always a cellmate Mr. Oliver ensure that celled with a nonsmoker. On asked to be noted As the Court who did not smoke. February a memoran- he received *5 decency” in- McKinney, are “standards of informing him that Mr. dum from Melvin “evolving” smoking. As on the issue deed in the was allowed above, people feel we and more noted permit,” gallery a which not have “low did right have a to avoid sec- that nonsmokers something to to do with smok- we take Department of The Illinois ond-hand smoke. 8, 1993, February Mr. ing. Oliver wrote On come to apparently has itself Corrections Melvin, stating part: Superintendent to “enlightenment,” All of this that conclusion. request specifically with My dealt however, from some not without resistance “Non-Smoking Mate authorized a Cell it population. So remains portion of the there are various inmates since just “cur- as to what the somewhat unsettled smoke, a do North House that not decency” ques- It is this is.

rent standard exactly Gallery ”! This is Low Permit allowed Mr. Supreme Court tion which the my request you what to stated. McKinney attempt prove: he must “es- contrary to February it is current stan- the medi- response, In tablish anyone decency exposed to be a so at Pontiac sent memo dards cal records director against Murray, stating his will-” Melvin that “Owen to Mr. D.O., issued a medical Medical Director has only be celled with a order that Oliver is to global does not raise Mr. Oliver's case day, non-smoking That same cellmate.” McKinney. The issue addressed Murray sent Mr. Oliver memorandum stat- actual medi- simply here is whether Oliver’s had for a ing “permit” been issued cal at Pontiac was so serious condition while non-smoking cellmate. provide implicate as the Constitution damages. Even basis for award the district his affidavit submitted issue, is, requires as it limited this court, Murray the lan- 'Dr. indicated must of difficult lines. A court drawing memo was guage in the medical director’s line is the constitutional determine when than he have used. He did stronger would crossed, case, cases, pres- this like most anyone Mr. with not to house Oliver “order” unique own situation. ents its opinion In his Mr. Oliver’s a nonsmoker. required Mr. asthma was mild and was what we know is that Specifically, only signs of he celled with nonsmokers. Other showed Oliver was asthmatic and articles, indi- general few news said smoke A few fellow inmates distress. smoke, many as cate that as well other that he showed Mr. wheeze and made condi- things, aggravate an asthmatic it. signs of discomfort. That’s On other tion, in the record that hand, there is no evidence Mr. medical records Oliver’s relationship between there is causal show that he received considerable concerns, Oliver suffered. and the distress Mr. well as for smoke asthma attention for said, smoke, we this ease about what the exposed As when he was and he re- requires. Recently, peatedly alleged Constitution another suffering that his was the Romero, case, Anderson v. 72 F.3d result of the deliberate indifference of the (7th Cir.1995), we noted that “the officials his medical needs. pun- cruel Amendment forbids and unusual By ready the time the case was for sum- ishments; require it does not the most intel- mary judgment, Oliver had added a number humane, ligent, progressive, or efficacious of additional materials the record. These prison administration.” Mr. com- Oliver’s February included memorandum dated plaint seeks to involve us in the sort of Director, from the Medical Records “micromanagement” of a state that we Gruber, Super- Ronald C. to North Cellhouse record, deplored in Anderson. On this Oli- intendent reporting Francis ver has not demonstrated that he was sub- D.O., Murray, Medical Director Owen jected punishment. to cruel and unusual He “issued a medical order” for Oliver “that he cannot show that while he was at Pontiac he is to be celled with a cell- sufficiently had a medical need serious to response mate.” In request to a for admis- implicate support the Constitution or to sions, Melvin confirmed that he received the damages. claim for Therefore we affirm the memorandum. Melvin also admitted that he granting summary order of the district court asthmatic, knew that Oliver was but denied judgment to the defendants. knowing that Oliver had “a serious medical require[d] condition that him Affirmed. to be celled only.” with non-smokers The record also WOOD, Judge, DIANE P. Circuit correspondence included between Oliver and dissenting. Melvin smoking, about in which Melvin ad- *6 vised Oliver to “work it out” with his cell- question The before the Court in this case mate. Oliver offered several affidavits from simple: pro petitioner did se Harold Oliver inmates, they who attested that bring forward sufficient facts this medical having difficulty observed breathing Oliver § treatment 1983 case defeat the and that had seen various offi- summary judgment officials’ motion? laughing cials about his situation. majority that not. concludes he did Because I believe this conclusion is based both on a The prison officials themselves .attached misapprehension governing legal stan- Murray Dr. affidavit of to their motion recognize and a failure to critical dards summary judgment. Murray Dr. con- record, disputes factual in this I dissent. that firmed Oliver’s records “note that he diagnosed was as a mild asthmatic on June complaint, typed Oliver’s which was on the “[wjhile by stating 1992.” He continued typically § form used for 1983 cases problem, asthma can be a serious medical Illinois, alleged Central District only Mr. Oliver’s condition was mild and “deliberately, the named officials in- threatening. never life His condition re- tentionally, knowingly, capriciously mali- quired hospitalization.” no outside The med- ciously ‘forced’ him to be celled with themselves, ical records which were attached against complaint ‘smokers his will’.” The affidavit, Murray’s to Dr. showed that Oliver clearly stated that the defendants took these prescription requiring had a him to take though plaintiff complained actions “even tablets, Theophylline, milligram twice a objected celled with smokers day, Metaprel, puffs two from an inhaler plaintiff because the suffers from ‘Asthma’.” per day. four times given Oliver asserted he had been specified medical order that to have a Oliver attached several items to his re- non-smoking only. alleged sponse cellmate He to the motion. First, cigarette greater smoke “has even detri- he furnished a memorandum he had lungs organs Murray ment to the and vital “a received from that stated ‘Medically permit who ‘Asthmatic’ has been Ordered’ has been issued for a to cell with non-smokers.” He de- cellmate.” In he attached an article 20, physical symptoms scribed he suffered from the June issue of Business records themselves condition. The medical “Trying Knock the Wind out entitled Week the court objective evidence before article notes in were at 184. The of Asthma.” Id. condition, and suggested of his about the seriousness passing that studies “several per- pollu- competent medical greater air indicated that asthma and links between daily tion, cigarette required a twice exposure to believed Oliver poverty, and sonnel added). Theophylline, In the and two (emphasis mg of Id. dose of 300 smoke.” inhaler, Metaprel asthma sufferers which contains noting puffs from a course away enough get metaprotenerol, from the causes of sympathomimetic agent not do attacks, typical “cat According causes the American day. their lists four times He also at- Diagno- smoke.” Id. Society, hair or tobacco Thoracic Standards for article from U.S. News & World tached an Ob- Patients with Chronic sis and Care of (1986), entitled “The smoke Report, June Pulmonary Disease these structive door,” dangers which addresses together next indicate a rela- prescriptions taken generally. Id. smoke cases tively second-hand case of asthma. Mild serious (a beta-adrenergic agonists class respond to belongs, metaprotenerol id. drugs to which notes, upon novo majority our de As the 231). However, Society states: summary judg granting of a decision review orally usually given as sus- Theophylline is ment, light facts in the we must view the chronic formulations tained-release party opposing the most favorable therapy. Although the bene- maintenance motion, prevail, here Oliver. order prove in theophylline are difficult to fits of satisfy court had to the district patients COPD obstructive [chronic with (and he did allegations stated a claim thus disorder], use is favored pulmonary its law), and that there not lose as matter appropriately clinicians when used most genuine of fact on each element produce agents sympathomimetic Eighth Amendment claim. For an of his fail adequate bronchodilation. § this claim under medical conditions (1) added). showing that he had a serious prescription means (emphasis Id. (2) need, prison officials that the objective Theophylline is thus evidence indif responded enough to that need with deliberate Metaprel inhaler alone was Brennan, or, ference, in the words of Farmer for Oliver’s asthma. *7 - -, 1970, -, U.S. S.Ct. also contained indications The record (1994), 1977, a suffi L.Ed.2d 811 with lay person that readily comprehensible to a ciently culpable of mind. state significant. was suggested Oliver’s condition “[m]y asth- deposition, he stated that allegations In his disputes that Oliver’s No one wheeze, Gamble, causes me to be ma causes me to it satisfy enough to Estelle were (1976), nauseat- and causes me to be short of breath 50 L.Ed.2d S.Ct. claimed to suffer from ed at times.” He also Eighth Amendment Farmer the other and during attacks a week his the one to two asthma and in the lower court cases. Both here Although prison the offi- stay prison. at there were the instead whether issue has been consistently to argued that his failure light, in this cials disputed of fact. Viewed indicates that his case dispute of take his medication is a material it clear that there claimed, simply he this severe than severity asthma was less about the of Oliver’s fact the facts bear more one shows that in turn raises a material dis- problem, which interpretation. the officials pute of fact about whether deliberately indifferent to his serious panel claim that a I would be the last to Estelle, 429 U.S. medical needs. See medicine, in judges, untrained appellate at 292. asthma how severe Oliver’s should decide However, our task. The that is not Murrey’s affidavit and the was. begin I with Dr. summary the Murrey question for us is whether supporting medical records. court, fashion, before the district states, record conclusory in that Oliver Oliver, asthma, light most favorable that is not viewed only but a “mild” case genuine that there were no clearly indicated have about Oliver’s only information we the required reiterating clearly material fact that a trial. It is worth issues of Oliver alleged stage, preliminary have the officials’ this did not actions forcing him a cell with refuting the the to share smokers burden of doctor’s one; prove exacerbated condition. To as a his medical characterization of his case “mild” point, poses this he tried to show that ETS only he that the needed show matter was greater and view, more immediate health risk disputed. my particularly taking an asthmatic general population. than for the proceeding pro into he account that was se Working within the limited resources court and have avail- before the district did not him, libraries, ways: able to he did this two to extensive medical or other anecdo- access tally, by supplying physi- affidavits about the that burden. satisfied placed cal distress he endured when he was reject There is a second reason to the smokers, directly, through with and undisputed conclusion that facts made Business Week article he furnished clear was that Oliver’s case “mild.” court. mild, Murrey says that it “not affidavit was Again bearing question in mind that Eighth life But threatening.” genuine was whether the facts that a showed concerns arise before medical needs become present, issue not whether Oliver’s evi- threatening. literally Nothing in Estelle life conclusively proved point, dence a medical I any subsequent or in of the deci Gamble find his showing sufficient to defeat Supreme sions Court or this Court judgment. Common sense tells us asth- adopts stringent standard. To the such breathing problem, ma is a that people contrary, Supreme Court’s decision air passages lungs may whose are weak 903, 112 Helling McKinney, 502 U.S. S.Ct. pollu- well suffer more from environmental (1993), finding 116 L.Ed.2d 286 that an ETS) (including tion than those air whose a claim inmate stated under passages strong. lungs are The Busi- expo he asserted that Amendment when much, and, ness Week article indicated as (ETS) sure tobacco smoke to environmental while it not itself been admissible health, poses danger to his a serious future trial, evidence it indicated the existence claim exists indicates that a far short of expert hardly of admissible evidence. It is present life-threatening or future situations. prisoner to track expect realistic down This in Del Willi- Court’s decision Raine v. experts present their direct affi- (7th Cir.1994), ford, makes a 32 F.3d summary judgment, davits on a motion for rejection point, argument similar its especially proceeding- when the complaining in a an inmate left pro se. pro bitterly cold cell should be allowed to majority brushes off evidence Oli- (and show) alleged ceed if could it says ver was to find. In essence able “frostbite, hypothermia caused cold *8 tending prove “other than some evidence similar infliction.” Id. at 1035. In any.” position, But this there isn’t is cases that also involved the two recent way summary judgment. to approach odd breathing ETS on inmates with effects of under Either met his burden Celotex v. problems, Circuit found that Catrett, 2548, 477 allegations the defendant of survived (1986), I or he didn’t. conclude L.Ed.2d summary judgment based ficials’ motions that he did. immunity. on See qualified Weaver (8th Cir.1995) fact, Clarke, my survey In own brief 45 F.3d (ETS headaches, up literature turned a number of studies plaintiff “severe diz caused has ziness, nausea, that have that ETS leads to increased vomiting, breathing and diffi found See, culties”), morbidity Brundage, in adult asthmatics. ex- 60 F.3d and Sanders (8th Cir.1995) Jindal, (ETS Dhijar Gupta ample, and aggravated plaintiffs Surinder asthma). Amarjit Morbidity decisions, Singh, on these I believe Indices Based Adult Patients Ex- also erred a matter Control Asthma in that the district court Smoke, posed to Tobacco granting summary judgment Environmental law Menon, (1994); Roy J. Ran- Chest 746 Prem against Oliver. Stankus, crucial do, Salvaggio E. to demonstrate that the facts P. evidence Richard John Lehrer, cigarette disputed, I B. Passive were would reverse and Samuel remand for smoke-challenge Increase in bron- below and a trial. studies: Allergy hyperreactivity, 82 Clin.Im- chial J. (1992). trial, experts

munol. called, position might be

supporting this naturally prison might possible that the

it is testify par- no experts to that ETS has

find asthmatics,

ticularly detrimental effect on mild, serious, or their condition is

whether general effect of ETS on

severe. Both asthmatics, partic- and its effect on Oliver Petitioner, DOBRICAN, Vasile ular, questions cannot be are factual summary judgment. dismissed AND IMMIGRATION respect allegations of de- to Oliver’s With SERVICE, NATURALIZATION condition, indifference to a known liberate Respondent. argue seriously prison officials do not showing. adequate failed to make an that he No. 95-1540. interpretation They dispute his of the Medi- memorandum, Appeals, States cal Director’s dis- United Court Murrey pute in au- Seventh Circuit. the “true intent” of Dr. thorizing cellmate. These Argued Sept. prison’s disputes about the actual evaluation highly material to Oli- his condition Decided Feb. case, but the court resolved ver’s district However, paper there

them on record. certainly dispute repeatedly no that Oliver asthma, that he the officials about his

told cellmates, requested nonsmoking

repeatedly fact that

that he called their attention to the it more for him to

smoke made difficult

breathe, a period and that for of time respond.

did not conclusion, important it is to remember it case is not whether would

that this about prisons smoking, if good

be a idea banned zones, no-smoking nor

adopted generalized harms

is it about what ETS former, respect to With

cause.

up the courts to those kinds of decide prison policy respect

internal matters. With latter, a far and easier this is narrower Helling, and the Court’s result

case

today is in tension with therefore substantial is about effect of ETS on

it. This case admittedly wheth- prisoner, asthmatic place

er an institution’s conscious refusal relatively in a envi- smoke-free to a refusal to

ronment amounts deliberate condition, thereby

treat a serious medical

raising concern. Be- enough presented I believe

cause