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AUSTIN v. LEHMAN

July 6, 1995

HASSAN AUSTIN, Plaintiff,
v.
JOSEPH D. LEHMAN, et al., Defendants.



The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 July 6, 1995

 Plaintiff, a pro se prisoner, commenced this action under 42 U.S.C. ยง 1983. He alleges that his Eighth and Fourteenth Amendment rights under the United States Constitution were violated when officials at the State Correctional Institution ("SCI") at Frackville denied him his bi-weekly allotment of free cigarettes and denied him his right to purchase cigarettes for a six week period of his confinement in disciplinary custody there. Named as Defendants are the Commissioner of the Pennsylvania Department of Corrections, the Superintendent at SCI Frackville, and the Superintendent's Assistant. Before me is Defendants' motion for summary judgment. For the reasons set forth below, I grant it.

 I. FACTS

 The following facts either are undisputed or represent Plaintiff's version of the events underlying this litigation. Those events began on June 3, 1993, when Plaintiff was transferred from SCI Huntingdon to SCI Frackville. Ex. 1 to Defs.' Mot. for Summ. J., at 5. Upon arrival at SCI Frackville, Plaintiff was placed in administrative custody in the prison's Restricted Housing Unit ("RHU"), where he underwent an orientation as part of being processed for admission to the prison's general population. Id. at 6. Among the topics discussed during this orientation was whether Plaintiff smoked cigarettes. Plaintiff had smoked in the past but was not smoking when he entered SCI Frackville, and he advised the orientation staff that he was not a smoker. Id. at 6, 13-14.

 On June 9, 1993, Plaintiff was placed in the disciplinary custody wing of the RHU at SCI Frackville for misconduct unrelated to this action. Id. at 7. Sometime during this confinement in disciplinary custody, Plaintiff began to smoke again. Id. As an indigent inmate in disciplinary custody, Plaintiff was entitled under prison administrative directives then in force to one free package of cigarettes every two weeks. Id. While applicable directives also permitted inmates in disciplinary custody to purchase a similar quantity of cigarettes from the prison commissary, Plaintiff lacked the funds to avail himself of this permission and was dependent for his smoking habit on the free cigarettes provided by the prison. Id. at 11, 16-17. Plaintiff received his free bi-weekly cigarette allotment until sometime in late July or early August of 1993, consuming most of it himself and "sharing" the balance with other prisoners. Id. at 14-15. On an allotment date in late July or early August of 1993, neither Plaintiff nor the other indigent prisoners in his disciplinary custody wing received their bi-weekly allowance of free cigarettes. Id. at 15-16.

 In response, Plaintiff filed a grievance with Defendant James Forr, the Superintendent's Assistant at SCI Frackville. Forr Aff., Ex. 2 to Defs.' Mot. for Summ. J., P 3. On August 10, 1993, Defendant Forr personally interviewed Plaintiff about the withholding of his cigarette allotment; on August 13, 1993, Defendant Forr issued a letter formally denying Plaintiff's grievance. Id. PP 4-5. As grounds for his decision, Defendant Forr cited Plaintiff's orientation classification as a non-smoker and suggested that Plaintiff was using prison-provided cigarettes as a form of currency, a practice forbidden under prison policy. Ex. B. to Forr Aff. Defendant Forr also informed Plaintiff in the letter that the prison officer on duty had contradicted Plaintiff's assertion that there was no cigarette distribution on the date in question. Id. On August 15, 1993, Plaintiff appealed Defendant Forr's decision to Defendant Chesney, the Superintendent of SCI Frackville, who affirmed it on August 19, 1993. Forr Aff. PP 6-7. Plaintiff then pursued his appeal to the Pennsylvania Department of Corrections' Central Office Review Committee, which, on September 10, 1993, affirmed the decisions of Defendants Forr and Chesney. Forr Aff. P 9. That same day, Plaintiff was released into the general prison population at SCI Frackville. Pl.'s Dep. at 10.

 This civil rights action followed. Plaintiff's claims, all of which are based on the denial of his bi-weekly cigarette allotment between late July or early August, 1993, and September 10, 1993, and on the alleged denial of his right to purchase cigarettes from the prison commissary during the same period, assert violations of the Eighth Amendment's ban on cruel and unusual punishment and of the Fourteenth Amendment's Due Process and Equal Protection Clauses. *fn1"

 Defendants have now moved for summary judgment, contending that on the uncontested facts set forth above Plaintiff's claims are deficient as a matter of law. In response, Plaintiff counters none of Defendants' factual assertions but merely repeats the ultimate conclusions in his complaint that the deprivations at issue here violated his constitutional rights. Pl.'s June 22, 1995, Aff. in Response to Mot. for Summ. J. PP 18-20. *fn2" Notwithstanding Plaintiff's failure to challenge Defendants' factual contentions, I have resolved all possible factual disputes for Plaintiff, and I have viewed the evidence here in the light most favorable to him. After doing so, I agree that Defendants are entitled to summary judgment. Plaintiff, who was admittedly indigent during the relevant period, lacks standing to challenge the alleged denial of his right to purchase cigarettes from the prison commissary. As for the denial of Plaintiff's bi-weekly cigarette allotment, I conclude that it does not rise to the level of an Eighth Amendment violation. I also conclude that the denial of free cigarettes constitutes no due process violation because it implicates no protected interest and because the post-deprivation remedies that were and still are available to Plaintiff are sufficient to satisfy the demands of the Due Process Clause. Finally, Plaintiff cannot establish an equal protection violation based on Defendants' failure to provide him with free cigarettes because there is no evidence that Plaintiff was treated any differently in this respect than other indigent inmates confined in disciplinary custody.

 II. DISCUSSION

 Summary judgment is appropriate where the moving party establishes that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). An issue is not "genuine" unless the record contains evidence sufficient for a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is not "material" unless it would affect the outcome of the action under the governing law. Id., at 248. On a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Mellon Bank Corp. v. First Union Real Estate Equity & Mortgage Invs., 951 F.2d 1399, 1404 (3d Cir. 1991). Nonetheless, where the non-moving party cannot raise a genuine fact issue with respect to an essential element of his case, that inability necessarily renders all remaining fact disputes immaterial as a matter of law. Celotex, 477 U.S. at 322.

 A. Denial of Right to Purchase Cigarettes

 As a threshold matter, Plaintiff lacks standing to pursue his claims based on the alleged denial of his right to purchase cigarettes from the prison commissary. Because the uncontradicted evidence in the record discloses that Plaintiff had no funds with which to purchase cigarettes while confined in disciplinary custody, Ex. 1 to Defs.' Mot. for Summ. J., at 11, 16-17, Plaintiff was effectively reduced to the status of a "non-purchaser" during the relevant period. Thus, much like a non-smoker, he cannot have been aggrieved by being prohibited from purchasing cigarettes. See Beauchamp v. Sullivan, 21 F.3d 789, 790-91 (7th Cir. 1994) (non-smoking inmate lacked standing to challenge constitutionality of prison smoking policy). Stated in the parlance of standing doctrine, Plaintiff cannot show that denying him the right to purchase cigarettes "caused [him] injury that would be redressed, in a non-speculative way, by an order precluding" Defendants from having done so. Washington v. Reno, 35 F.3d 1093, 1102 (6th Cir. 1994) (finding, based on this standard, ...


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