Richardson v. SpurlockRichardson v. Spurlock
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- Before:
- Garza
William C. Richardson (“Richardson”), a Louisiana prisoner, appeals the dismissal of his
Richardson is an inmate at the Louisiana State Penitentiary. On “several occasions,” he claims that he was exposed to second-hand smoke from other inmates’ cigarettes during bus rides to and from work assignments. As a result, he says he had to “gasp for breath,” and suffered from nausea. The smoke also allegedly aggravated his “existing medical conditions such as high blood pressure, blood clotting, edema, arthritis, tumors etcetera,” and increased his risk for “fatal cancers.” Richardson claims that prison officials deliberately allowed this to occur, despite his complaints.
He filed an
in forma pauperis
Richardson filed written objections to the magistrate judge’s report and recommendation. The district court overruled his objections, and adopted the magistrate judge’s findings.
See
We hold that the district court did not abuse its discretion in dismissing Richardson’s complaint. The Supreme Court has applied a two-prong test to determine whether exposure to second-hand smoke violates a prisoner’s Eighth Amendment right. First, a prisoner must prove objectively that he is “being exposed to unreasonably high levels of ETS [Environmental Tobacco Smoke].” Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 2482, 125 L.Ed.2d 22 (1993) (emphasis added). In assessing this first factor, the court must conduct an inquiry into the seriousness of the potential harm and into the likelihood that second-hand smoke will actually cause such harm. See id. 509 U.S. at 37, 113 S.Ct. at 2482. The court also has to determine “whether society considers the risk . . . to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. (emphasis in original). Second, the prisoner must show that prison authorities demonstrated a “deliberate indifference” to his plight. See id.
Richardson’s claim fails to meet the first prong of the Helling test. While Richardson’s sporadic and fleeting exposure to second-hand smoke might have been unwelcome and unpleasant, it did not constitute “unreasonably high levels of ETS.” Id. 509 U.S. at 35, 113 S.Ct. at 2482. The record fails to establish by competent evidence that his intermittent exposure to smoke during bus rides was an unreasonable risk to his health. And to the extent that the smoke caused Richardson discomfort (e.g., coughing and nausea), it did not reach the level of a constitutional violation. See Oliver v. Deen, 77 F.3d 156, 158 (7th Cir.1996) (denying an Eighth Amendment claim by an asthma sufferer who said the smoke caused him to wheeze, gasp for breath, and suffer from dizziness and nausea).
Richardson’s case can be factually distinguished from
Helling.
The prisoner there shared a cell with another inmate who smoked five packs of cigarettes a day.
See id.
509 U.S. at 28, 113 S.Ct. at 2478. Similarly, in the two Fifth Circuit cases that have recognized a potential ETS-based Eighth Amendment claim, the exposure to second-hand smoke was substantially more severe and sustained than that alleged by Richardson.
See Whitley v. Hunt,
158 F.3d 882, 888 (5th Cir.1998) (the prisoner shared living quarters with a smoker);
Rochon v. City of Angola,
122
Indeed, other courts have rejected ETS-based Eighth Amendment claims even where the exposure was more pervasive and pronounced than that claimed by Richardson. For example, the Seventh Circuit has held that an inmate who shared a cell with a smoker for 133 days failed to show that he had a serious medical need or that he had been denied “the minimal civilized measure of life’s necessities.” Oliver, 77 F.3d at 159 (internal citations omitted). See also Guilmet v. Knight, 792 F.Supp. 93 (E.D.Wash.1992) (holding that being housed with a smoker for 15 days did not “pose[ ] an unreasonable risk to his health, much less that he was denied ‘the minimal civilized measure of life’s necessities’ ”).
We further uphold the district court’s dismissal of Richardson’s other claims. First, Richardson alleges that prison officials acted with deliberate indifference in assigning him the job of washing plastic trays, which required him to stand up and inflamed his swollen wrists. He argues that the assignment violated his medical duty status requiring him to sit down when working. We have said that if prison officials knowingly forced a prisoner to engage in work “which they knew would significantly aggravate his serious physical ailment[,] such a decision would constitute deliberate indifference to serious medical needs” in violation of the Eighth Amendment. Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.1989). The magistrate judge found little evidence that washing plastic trays significantly aggravated his physical infirmity. Richardson admits that he did not wash trays longer than 15 minutes. The judge also found that inmates had aided him in the task on at least one occasion, and that Richardson never sought any medical attention as a result of being forced to wash trays for quarter of an hour at a time on four different occasions.
Second, the district court properly dismissed for failure to exhaust administrative remedies Richardson’s claim that prison authorities filed a retaliatory, false disciplinary report.
See
Third, Richardson’s other retaliatory claims fail because he admits that the
AFFIRMED.
Notes
.
. The record reflects that prison authorities have now ordered that smoking inmates be segregated from the non-smokers during bus rides.