Appeal from the United States District Court for the District of Delaware (C.A. No. 99-cv-562) District Judge: Honorable Joseph J. Farnan, Jr.
Before: Nygaard and Ambro, Circuit Judges,
and O'neill, District Judge *fn1
The opinion of the court was delivered by: O'neill, District Judge
This is an appeal from the District Court's denial of appellants *fn2 motion for summary judgment based on qualified immunity. Appellee, an inmate of the Delaware Department of Correction, asserted civil rights infractions under 42 U.S.C. S 1983, claiming that appellants 1) violated the Eighth Amendment's prohibition on cruel and unusual punishment by exposing him to environmental tobacco smoke ("ETS") that created a serious medical need and posed an unreasonable risk of harm (Count I) and 2) retaliated and used excessive force against him for filing his ETS lawsuit (Counts III and IV). Appellants1 raise three issues on appeal: 1) whether appellants are entitled to qualified immunity for the ETS claims; 2) whether appellants are entitled to qualified immunity on the retaliation and excessive force claims; and 3) whether appellants in supervisory positions are entitled to qualified immunity on all claims because they lacked notice of the underlying events. As to the first two issues, we will affirm the District Court's denial of summary judgment. We conclude that we lack jurisdiction to decide the third issue.
Appellee Roger Atkinson is a blind, diabetic prisoner who was housed at Delaware's Multi-Purpose Criminal Justice Facility ("MPCJF "). Although a former one-pack-per-day smoker, appellee quit in 1995 after receiving surgery for a pituitary adenoma.
Atkinson's ETS claims arise under the Eighth and Fourteenth Amendments of the United States Constitution. He asserts that from November, 1998, until November, 1999, appellants subjected him to cruel and unusual punishment by exhibiting deliberate indifference to his claims that he was being involuntarily exposed to high levels of second-hand smoke, which forced him to endure severe allergic reactions to ETS and posed an unreasonable risk of future harm to his health. According to his answers to interrogatories, during a seven-month incarceration at MPCJF he shared a cell with two inmates, each of whom smoked "constantly" while in the cell. Appellee shared another cell with a constant smoker for six weeks, and later with a cellmate who smoked ten cigarettes per day.
Appellee also claims that he has been exposed to other smoking cellmates on various occasions.
Shortly after being exposed to ETS and suffering symptoms from it, appellee complained to the medical staff at MPCJF and Sergeant Sonata. Atkinson alleges that when he tried to seek help at the prison infirmary, the treating nurse responded that she was unable to transfer him to a cell with a nonsmoking roommate. Although Sonata moved appellee to a smoke-free area, Way later returned him to a smoking environment. Thereafter appellee wrote letters to Williams, Captain Lee, Phelps, Parker, and Taylor about his exposure to ETS. The exposure did not cease.
Appellee twice complained to Parker, the supervisor of Pods 1F and 1E, about his exposure to ETS, but Parker refused to move him to a smoke-free area. Appellee also complained to Green and requested that he be removed from exposure but was not moved.
Atkinson's amended complaint alleges that he was exposed, with deliberate indifference, to constant smoking in his cell for over seven months and as a result suffered nausea, an inability to eat, headaches, chest pains, difficulty breathing, numbness in his limbs, teary eyes, itching, burning skin, dizziness, a sore throat, coughing and production of sputum. Albert A. Rizzo, M.D., a pulmonary specialist who examined appellee concluded that there was a "reasonable medical probability" that these symptoms were precipitated by second-hand smoke.
However, in an affidavit, prison physician Dr. Keith Ivens disputed Dr. Rizzo's evaluation and contended that Atkinson's symptoms arose from seasonal allergies. A. Judson Wells, Ph.D. stated in an expert report:"I would say that for Mr. Atkinson to continue in a smoke filled cell would increase his risk of death or non-fatal heart attack or stroke."
Appellee also asserts that MPCJF officials subjected him to a variety of abuses in retaliation for filing his lawsuit. He contends that Way told him that if he had not complained about ETS he would not have been placed in administrative segregation. On repeated occasions, Way read appellee's personal mail over the prison's intercom so that other inmates could hear it. On or before May 4, 2000, notes relating to appellee's ETS case were taken from his cell and were read over the intercom by Way and Officer Johnson.
Way withheld papers that appellee requested from the law library. On other occasions, Way refused to permit appellee to make telephone calls to his attorney. Way also cursed appellee and made derogatory comments about his blindness. When appellee asked Way to stop harassing him, Way again cursed him and stated that Way was above the law. Parker was aware of these actions but failed to stop them. Way and Parker placed appellee in solitary confinement during recreation periods, thereby depriving him of the assistance of people able to read his mail or help him with legal work, allegedly for the purpose of preventing him from proceeding with his civil action. On October 5, 2000, Way prevented appellee from receiving his one hour of recreation and falsely wrote in the prison log that he had refused recreation.
Additionally, appellee either received or was threatened with physical retaliation for filing his lawsuit. In January or February of 1999, Way entered appellee's cell while he was sleeping, grabbed him by the leg and pulled appellee from his bed, stating that he thought appellee was dead. On March 29, 2000, Way threatened to attack appellee and took appellee's clothing, leaving appellee without clothing for over ten hours. On another occasion, Way entered appellee's cell and threatened to smash his face into the wall. Another time, Way stated that he would hang appellee. On multiple occasions, Way prevented appellee from receiving his medications or tampered with his food. Way and Parker have threatened appellee and told him that he would never make it to court. Various times Way told appellee that Way would "kick [his] ass," that his privileges would be taken away, and that there was nothing that he could do about it. On December 26, 2000, appellee was attacked by Green, who struck him in the face and head.
This incident was investigated by the FBI, apparently because of complaints made by appellee's mother. Thereafter, Way told appellee over the intercom that he would regret bringing the FBI into the matter and that Way would make him pay. When appellee was leaving an interview room Way ordered appellee to take off his clothing. After appellee disrobed, Way kicked his clothing around and said that he had to make sure that appellee was not a woman because women were sent to another facility. On December 27, 2000, Green refused to bring appellee his breakfast and lunch trays. On February 16, 2001, when appellee returned from a court appearance, he was strip searched in booking, which is standard procedure. Appellee then returned to Pod 1F and for no reason Way made him strip again.
According to appellee, he has written to Williams, Phelps, Taylor, and Parker, and spoken to Green, about the harassment he received from Way.
Review by this Court is plenary when a denial of qualified immunity turns solely on a question of law. Brown v. Armenti, 247 F.3d 69, 72 (3d Cir. 2001). We recently reiterated that this Court lacks jurisdiction to evaluate the sufficiency of the evidence when reviewing a denial of summary judgment based on a lack of qualified immunity. Walker v. Horn, 286 F.3d 705, 710 (3d Cir. 2002) ("[W]e must adopt the facts assumed by the District Court."); see also Johnson v. Jones, 515 U.S. 304, 319 (1995) (no interlocutory appeal from denial of summary judgment based on remaining genuine issues of material fact). Although we may not evaluate the sufficiency of the evidence to prove the facts allegedly giving rise to a constitutional claim, we may determine whether the facts identified by the District Court constitute a violation of a clearly established constitutional right. See Ziccardi v. City of Philadelphia, 288 F.3d 57, 61 (3d. Cir. 2002).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court explained the two-part inquiry a court must make in order to determine whether a state official is entitled to qualified immunity:
A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? . . .
If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. Id. at 201.
To be clearly established "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). The Saucier Court further explained the latter prong of the test:
This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable
This is not to say that the formulation of a general rule is beside the point, nor is it to insist the courts must have agreed upon the precise formulation of the standard. Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard. Saucier, 533 U.S. at 201, 203.
Atkinson asserts two separate Eighth Amendment claims against defendants stemming from his involuntary exposure to ETS: 1) a claim for potential future harm arising from his exposure to ETS; and 2) a present injury claim stemming from deliberate indifference to existing medical needs caused by ETS. We will sequentially address whether defendants are entitled to qualified immunity for each claim.
With respect to the future injury claim, Helling v. McKinney, 509 U.S. 25 (1993), established the constitutional right required by the first prong of the Saucier test for qualified immunity. In Helling, the Supreme Court determined that a cause of action exists under the Eighth Amendment when a prisoner alleges that prison officials have exposed him, with deliberate indifference, to levels of ETS that pose an unreasonable risk of harm to his future health. Id. at 35 (concluding that prisoner stated a claim where he was forced to share a cell with a five-pack-per-day smoker). As to the second part of the Saucier inquiry, the Helling Court clearly established the elements of a two-part test that a plaintiff must meet to state a valid claim under the Eighth Amendment.
The Court explained that the first prong of the Helling test is an objective one: "[The prisoner] must show that he himself is being exposed to unreasonably high levels of ETS." Id. at 35. With respect to the objective factor, the Court noted that beyond a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS, the Eighth Amendment requires"a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id. at 36 (emphasis in original). The Court stated: "In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate." Id.
The second prong of the Helling test is a subjective one: whether prison officials were deliberately indifferent to a serious risk of harm. Id. at 36. The Supreme Court has held that "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a ...