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William Hoffman v. Devon Brown

April 5, 2011

WILLIAM HOFFMAN, PLAINTIFF,
v.
DEVON BROWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheridan, District Judge

NOT FOR PUBLICATION

OPINION

Plaintiff William Hoffman, a prisoner confined at Northern State Prison in Newark, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights based upon exposure to environmental tobacco smoke.

In July, 2010, this Court dismissed Plaintiff's original Complaint and granted him leave to move to file an Amended Complaint, which Plaintiff did. At this time, the Court must review the Amended Complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief.

I. BACKGROUND

The following factual allegations are taken from Plaintiff's Amended Complaint and are accepted as true for purposes of this review.

Plaintiff alleges that, for an unspecified period of time, he was housed on Defendant Officer McEachin's unit with a cellmate "Jenkins" who smoked two packs of Black and Mild Cigars, five cigars to a pack, that he purchased from the prison commissary. Plaintiff does not state when he was confined with Jenkins or for what length of time.

Plaintiff alleges that in 2007, he shared a cell with three other inmates. One cellmate smoked a pack of Buglers*fn1 a day. The second cellmate smoked a pack of Buglers and a pack and a half of Black and Milds per day.

Plaintiff alleges that he asked Defendant Officer Natale for a non-smoker to be housed in the same cell. When Officer Natale said, "smoking isn't allowed in the cells, are you saying your bunkie is smoking," Plaintiff said "no," because, if he said "yes," he would be labelled a "snitch."*fn2

Plaintiff alleges that in 2008 he was housed in a unit consisting of 14 prisoners, 7 of whom smoked. Plaintiff does not allege how much any of them smoke, if they smoke in the unit, etc.

Plaintiff alleges that there is a designated area for smoking in the recreation yard, but that the area is too small for the number of smokers, that it is not enforced, and that the smoking area is 15 feet from the door of the trailer cell unit that Plaintiff is used to enter and exit the trailer, forcing Plaintiff to breathe in their smoke. Plaintiff alleges that Defendant Correctional Officer I. Vargas is among those smoking near the door.

Plaintiff alleges that the bathroom he is required to use, while employed at his prison job in the kitchen, is used by other prisoners for smoking.

Plaintiff alleges that his clothes, towels, and bedding have retained the smell of smoke and that he is constantly exposed to second-hand and third-hand smoke. Plaintiff alleges that the exposure to second-hand and third-hand smoke causes Plaintiff coughing, headaches, shortness of breath, and chest pains, repeatedly.

Plaintiff alleges that, on August 18, 2009, he submitted an administrative remedy form, for which he alleges Captain Cannon is responsible. The administrative remedy read as follows:

Due to the seemingly pervasive issue of 3rd (third) hand smoke, I respectfully request that a non-smoker section of the units be provided.

Albeit, 2nd (second) hand smoke might be eliminated by the current State Laws and other Rules, the practice does not eliminate nor provide for the issue of 3rd (third) hand smoke. The matter of 3rd (third) hand smoke is the pollutants and other carcinogens that attach themselves to the person and/or objects in which smoking has occurred.

I, along with numerous others, have problems with 3rd (third) hand smoke and it is now requested that a wing or section be created to prevent exposure to 3rd (third) hand smoke - I respectfully request an accommodation be made. Mind you, this also means that non-smoking Officers should be provided when they come into said housing area. (Amended Complaint, Exs. A, B.) Plaintiff alleges that he requested an interview on the administrative remedy form, but that he did not receive the interview.

Plaintiff alleges that in June 2010, he was housed with two separate inmates in a two month period. He alleges that both cellmates smoked a pack of Bugler cigarettes a day, forcing Plaintiff to involuntarily breathe second-hand smoke.

Plaintiff alleges that he complained to the medical department of headaches and that, from 2009 to the present, he was advised to purchase aspirin from the prison commissary.

Plaintiff names as defendants New Jersey Department of Corrections Commissioner Devon Brown, Commissioner George W. Hayman, Northern State Prison Administrator Lydell Sherrer, Administrator Larry Glover, Assistant Administrator Bruce Sapp, Assistant Administrator Bruce Hauk, Correctional Medical Services, Inc., United Medical and Dental of New Jersey, Bugler Tobacco Company, John Middleton, Inc.,*fn3 Captain Cannon, Correctional Officer Natale, Correctional Officer C. McEachin, Correctional Officer L. Vargas, and unnamed John Doe and Jane Doe defendants.

Plaintiff asserts that he has been subjected to an unreasonable risk of future injury, in violation of the Eighth Amendment, arising out of his exposure to environmental tobacco smoke in the form of second-hand and third-hand smoke. Plaintiff also alleges state-law medical negligence claims against the Defendants Correctional Medical Services and the United Medical and Dental of New Jersey.

II. STANDARDS FOR A SUA SPONTE DISMISSAL This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions).

In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

In addition, any complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint must plead facts sufficient at least to "suggest" a basis for liability. Spruill v. Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). While a complaint ... does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ...


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