[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 23, 2005
No. 04-14276
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00023-CV-WTM-5
MICHAEL D. KELLEY,
Plaintiff-Appellant,
DANIEL HOWARD,
Plaintiff,
versus
PATRICIA A. HICKS,
PEGGY COOPER,
Defendants-Appellees,
CORRECTIONS CORP. OF AMERICA,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 23, 2005)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
I. Introduction
Plaintiff Michael Kelley, a former inmate at Coffee County Correctional
Facility (“CCF”), appeals the district court’s grant of summary judgment in favor
of defendants Patricia Hicks and Peggy Cooper in his pro se civil rights action
under 42 U.S.C. § 1983. Kelley alleges that warden Hicks and assistant warden
Cooper were deliberately indifferent to his future health by allowing him to be
exposed to harmful levels of environmental tobacco smoke (“ETS”) while he was
incarcerated at CCF.1
Specifically, Kelley alleges the following: (1) there was not a designated
smoking area for inmates who smoke; (2) the defendants did not indicate where the
smoking areas were; (3) there were inadequate smoking breaks; (4) cigarette
lighters were not mounted in the outside smoking areas; (5) “no smoking” signs
were not posted; (6) there were no smoking cages for inmates in the event it rained;
1
Originally, Kelley filed his complaint jointly with another inmate Daniel Howard
against Hicks, Cooper, and Corrections Corporation of America (“CCA”) alleging that the
defendants were deliberatively indifferent to the future health risks posed by exposure to ETS,
that they failed to enforce Georgia Department of Corrections (“DOC”) policies prohibiting
smoking inside CCF, and deprived plaintiffs equal protection. After conducting the required
screening under the Prison Litigation Reform Act, 28 U.S.C. §§ 1915 and 1915A, the district
court dismissed Howard from the case, the claims against CCA, and the equal protection claim,
but permitted Kelley to proceed with his deliberate indifference claims against Hicks and
Cooper.
2
(7) there was inadequate ventilation; and (8) the commissary sold matches to
inmates for a period of time, in violation of DOC policies.
After cross motions for summary judgment, the magistrate judge
recommended that the defendants’ summary judgment motion be granted. The
magistrate judge found, inter alia, that Kelley failed to show a risk to his future
health, and that he simply feared a future risk, which was insufficient to state a
claim. Additionally, the magistrate judge determined that the defendants had a no-
smoking policy in place, which they enforced to the best of their ability. Finally,
the magistrate judge found that there was no evidence that the headaches Kelley
complained of were related to ETS. After conducting an independent review, the
district court adopted the magistrate judge’s recommendation.2 Kelley now
appeals the district court’s grant of summary judgment.
II. Standard of Review
This court reviews a district court’s grant of summary judgment de novo,
viewing the evidence in the light most favorable to the party opposing the motion.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary
judgment is appropriate when “there is no genuine issue as to any material fact and
2
There is no merit to Kelley’s argument that the district court did not conduct a de novo
review of the magistrate judge’s recommendation. The district court indicated in its order that it
conducted an independent review.
3
... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
56(c).
III. Discussion
The Eighth Amendment governs “the treatment a prisoner receives in prison
and the conditions under which he is confined.” Helling v. McKinney, 509 U.S.
25, 31 (1993). The Supreme Court has held that a prison official’s “deliberate
indifference to [the] serious medical needs of [a] prisoner[] constitutes the
unnecessary and wanton infliction of pain...proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotation marks and citation omitted).
As this court has explained,
To show that a prison official acted with deliberate indifference to
serious medical needs, a plaintiff must satisfy both an objective and a
subjective inquiry. First, a plaintiff must set forth evidence of an
objectively serious medical need.3 Second, a plaintiff must prove that
the prison official acted with an attitude of deliberate indifference 4 to
that need.
Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quotation marks and
3
A serious medical need is considered “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)
(quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).
4
To establish that a prison official acted with deliberate indifference to a serious medical
need, “the prisoner must prove three facts: (1) subjective knowledge of a risk of serious harm;
(2) disregard of that risk; and (3) by conduct that is more than mere negligence.” Brown v.
Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
4
citations omitted).
This is the first case in this Circuit to address an Eighth Amendment claim
based on exposure to ETS. The Supreme Court, however, directly addressed such
a claim in Helling and provided clear guidance on this issue. There, the Court held
that a prisoner can state a cause of action under the Eighth Amendment for
exposure to ETS by “alleging that [prison officials] have, with deliberate
indifference, exposed him to levels of ETS that pose an unreasonable risk of
serious damage to his future health.” Helling, 509 U.S. at 35. As for the objective
factor, the prisoner must show that he himself is being exposed to unreasonably
high levels of ETS. Id. Relevant facts will include whether the prisoner remains
housed in the environment and whether the facility has enacted a formal smoking
policy. Id. at 35-36. The objective factor further considers “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...[and] also
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). As for
the subjective factor, the prisoner must show that prison authorities demonstrated a
“deliberate indifference” to his plight. Id. The adoption of a smoking policy “will
5
bear heavily on the inquiry into deliberate indifference.” Id.
Here, the district court properly granted summary judgment because Kelley
fails to satisfy the standards articulated in Helling. Significantly, in Helling, the
plaintiff was assigned to a cell with another inmate who smoked five packs of
cigarettes a day. Id. at 28. Here, Kelly did not allege that his cellmate was a
smoker, and, therefore, this case is distinguishable from Helling. In this case,
Kelley describes his health issues as concern about the future health of “his eyes,
lungs and heart.” He alleges that other inmates smoked inside the facility and had
no access to outside smoking areas when it rained. The defendants explain,
however, that the facility had a no-smoking policy in place, and that any inmate
caught smoking inside would be disciplined.5 Kelley alleges that other inmates in
his pod smoked inside and that the ventilation was inadequate. Notably, he fails to
proffer any evidence, other than his own self-serving statements, to show that the
ventilation was not sufficient. Moreover, Kelley has since been released from
prison, and, therefore can no longer be exposed to ETS at CCF. Furthermore,
Kelley offers no evidence to show that his headaches were causally linked to his
5
Moreover, in response to Kelley’s interrogatories, Hicks stated that (1) inmates were
permitted smoke breaks of five to ten minutes every two hours; (2) inmates were permitted to
smoke only outdoors in the designated fenced-in area behind the living facility; (3) CCF was a
nonsmoking facility, and, as such, it was not necessary to post “no smoking” signs; (4) officers
supervising breaks carried lighters; and (5) each building was air conditioned and had
ventilation. Hicks also submitted copies of DOC policy restricting smoking to outdoors at
designated times and prohibiting the sale of matches to inmates.
6
exposure to ETS.6 Thus, Kelley fails to objectively show that he was exposed to
unreasonably high levels of ETS and that the risk to his health was so “grave” as to
“violate contemporary standards of decency.” Compare Oliver v. Deen, 77 F.3d
156, 158 (7th Cir. 1996) (holding that passive tobacco exposure was not a serious
threat to an inmate who had a smoking cellmate for 133 days, even though the
plaintiff suffered from mild asthma) with Rochon v. City of Angola, 122 F.3d 319,
320 (5th Cir. 1997) (inmate was “required to live and work in ‘environments filled
with tobacco smoke’”).
Even if Kelley could satisfy the objective factor of his claim, he would fail
on the subjective component. Kelley offers no evidence to show that the
defendants acted with deliberate indifference. In essence, all Kelley has done is to
produce personal observations of smoke inside the prison. At most, he established
that Hicks and Cooper were negligent in enforcing the non-smoking policy, as
other inmates attested that smoking occurred inside CCF. Mere negligence,
however, is insufficient to establish deliberate indifference. Farrow, 320 F.3d at
1243. Kelley alleges that inmates were permitted to purchase up to fifty dollars
worth of tobacco products a week. But just because an inmate’s total commissary
purchase might equal fifty dollars a week, does not demonstrate that inmates, in
6
The neurologist whom Kelley visited concluded that Kelley suffered from tension
headaches.
7
fact, spent the entire fifty dollars on tobacco products. Furthermore, even if the
commissary sold matches to inmates for a period of time in violation of DOC
policies, Kelley cannot show that the defendants acted with deliberate indifference,
as Cooper explained that neither she nor Hicks were in charge of CCF at that time.
Thus, Kelley fails to establish that the defendants acted with deliberate
indifference.
IV. Conclusion
Accordingly, the district court properly granted summary judgment in favor
of the defendants. For the foregoing reasons, we AFFIRM.
8