United States District Court, M.D. Pennsylvania
June 13, 2005.
LEE HODGINS, Plaintiff,
JEFFREY RACKOVAN, ET AL., Defendants.
The opinion of the court was delivered by: YVETTE KANE, District Judge
MEMORANDUM AND ORDER
The Plaintiff, Lee Hodgins ("Hodgins"), an inmate formerly
incarcerated at the State Correctional Institution at Rockview
(SCI-Rockview), filed this complaint pursuant to 42 U.S.C. § 1983
on August 2, 2004. Hodgins is proceeding pro se. On December
14, 2004, Defendants filed a motion to dismiss the complaint for
failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6).
(Doc. No. 21.) A brief in support of the motion was filed on the
same date. (Doc. No. 22.) Hodgins filed a brief in opposition on
January 24, 2005. (Doc. No. 27.) The motion is presently ripe for
disposition and, for the reasons set forth below, will be
I. Allegations of the Complaint.
Hodgins takes issue with a no smoking policy that was
implemented at SCI-Rockview on June 9, 2003. It is his contention
that SCI-Rockview has a policy that cannot be enforced by prison
administration and is frequently violated by inmates. Also, the
institution's ventilation system has failed "ACA" standards. As a
result, the institution has high levels of environmental tobacco
smoke ("ETS") which is causing harm to his health.
Hodgins represents that he has exhausted his administrative
II. Standard of Review.
In evaluating whether a claim is subject to dismissal, the
court must accept all material allegations of the complaint as
true and construe all inferences in the light most favorable to
the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be
dismissed for failure to state a claim unless it appears "beyond
doubt that the Plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401
(3d Cir. 1988). A complaint that sets out facts which
affirmatively demonstrate that the Plaintiff has no right to
recover is properly dismissed without leave to amend. Estelle v.
Gamble, 429 U.S. 97, 107-108 (1976). Thus, we accept the truth
of the plaintiff's factual allegations, White v. Napoleon,
897 F.2d 103, 106 (3d Cir. 1990), and decide in reviewing the
complaint "whether under any reasonable reading of the pleadings,
plaintiff may be entitled to relief." Simon v. Cebrick,
53 F.3d 17, 19 (3d Cir. 1995).
Defendants first seek dismissal of the complaint on the grounds
that Hodgins has failed to exhaust his administrative remedies.
The Prison Litigation Reform Act (PLRA) requires prisoners to
present their claims through an administrative grievance process
before seeking redress in federal court. The act specifically
provides as follow:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until
such administrative remedies as are available are
42 U.S.C. § 1997e(a). Prisoners must exhaust administrative
remedies as to any claim that arises in the prison setting,
regardless of limitations on the kind of relief that may be
gained through the grievance process. See Porter v. Nussle,
534 U.S. 516
, 532 (2002): Booth v. Churner, 532 U.S. 731
n. 6 (2001). "[I]t is beyond the power of [any] court . . . to
excuse compliance with the exhaustion requirement." Nyhuis v.
Reno, 204 F.3d 65
, 73 (3d Cir. 2000) (quoting Beeson v.
Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y.
The PLRA requires not only technical exhaustion of the
administrative remedies, but also substantial compliance with procedural requirements. Spruill v.
Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004); see also
Nyhuis, 204 F.3d at 77-78. A procedural default by the
prisoner, either through late or improper filings, bars the
prisoner from bringing a claim in federal court unless equitable
considerations warrant review of the claim. Spruill,
372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir.
The Pennsylvania Department of Corrections provides an
administrative grievance system that requires inmates to file
formal written grievances for initial review following
unsuccessful informal resolution of a problem. DC-ADM 804
VI(A)(1)(a). Grievances must be submitted for initial review
within fifteen (15) working days after the events upon which the
claims are based. DC-ADM 804 VI(A)(1)(e). If an inmate is
dissatisfied with the initial review response, the inmate may
appeal to the Facility Manager within five (5) working days from
the date of receipt by the inmate of the Initial Review decision.
(Doc. No. 23, Declaration of Kristen Reisinger ¶ 3; DC-ADM 804
VI(C)(1)(b)). The next step in the review process, is that the
Secretary of the Department of Corrections Office of Inmate
Grievances and Appeals must review the inmate's appeal of the
Facility Manager's decision. (Id.; DC-ADM 804 VI(D)(1)(b)).
Hodgins filed grievance number 86459 complaining of other
inmates smoking in the cells and at the entrance ways and exits
of the housing units, education buildings and dining facilities
and that the newly implemented no smoking policy was not being
enforced. He requested that certain vents be left open because of
high levels of ETS. He also requested return to the prior policy
governing smoking. In response, Hodgins was informed that the new
no smoking policy was being enforced and that there would not be
a return to the previous smoking policy as the new policy made
all units non-smoking units. His appeal was denied. His appeal to
final review was also denied.
In relying on the Spruill case, Defendants argue that Hodgins
has failed to exhaust his administrative remedies by failing to comply with the grievance
policy requiring that a statement of the facts relevant to the
claim be included in the grievance, and that any persons who may
have information that could be helpful in resolving the grievance
be identified in the grievance. (Doc. No 22 at 5; DC-ADM 804,
VI(A)(1)(d)). The Court agrees. Throughout the grievance process,
Hodgins failed to identity the SCI-Rockview personnel whom he
believed failed to properly enforce the new no smoking policy.
The identity of the responsible individuals is a "fact? relevant
to the claim" and it was mandatory for Hodgins to include that
information. Hodgins did not, and has offered no explanation for
his failure to do so. Any grievance against these individuals
would now be time-barred. DC-ADM 804, VI(A)(1)(e) ("[g]rievances
must be submitted by the inmate . . . within fifteen (15) working
days after the events on which the claims are based"). Thus,
Hodgins has procedurally defaulted his claim and Defendants'
motion to dismiss the complaint will be granted.
It is noted that even if Hodgins had exhausted his
administrative remedies, the complaint would still be subject to
dismissal. In Helling v. McKinney, 509 U.S. 25 (1993), the
Supreme Court specifically dealt with an Eighth Amendment claim
based on ETS. In that case, the inmate-plaintiff claimed that the
Eighth Amendment was violated when he was placed in a cell with
an inmate who smoked five packs of cigarettes a day. The
plaintiff had not yet suffered injury as a result of the exposure
to the smoke, but the Court stated that he could prevail on his
claim if he established the following. With regard to the
objective component of the Eighth Amendment, he had to show two
things: first, that he was being "exposed . . . to levels of ETS
that pose an unreasonable risk of serious damage to his future
health," id. at 35; and second, that the risk was "so grave
that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk." Id. at 36. The Court added
in connection with the latter factor, "[i]n other words, the
prisoner must show that the risk of which he complains is not one
that today's society chooses to tolerate. Id. As concerns the
subjective component of deliberate indifference, deliberate
indifference "should be determined in light of the prison authorities' current
attitudes and conduct," with the Court noting that "the adoption
of [a] smoking policy . . . bear[ing] heavily on the inquiry into
deliberate indifference." Id. Our Circuit has also addressed
the claim in Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003).
The Court initially notes that Hodgins is complaining of a new
"no-smoking" policy. In alleging that he is suffering irreparable
harm based upon his continued exposure to high levels of ETS,
Hodgins generally complains that despite the new policy, inmates
are smoking in cells and at other locations throughout the
prison, and they are not complying with the no smoking policy.
Hodgins' exposure to ETS would be limited to the common areas; he
does not allege that he was housed with a smoker. In fact, based
on the copy of the new no smoking policy that was submitted by
Hodgins, he was housed in a non-smoking unit. (Doc. No. 22 at 8.)
Further, the only symptoms of which Hodgins complains are minor
symptoms such as headaches and eye irritation. Such ETS exposure
does not automatically translate into an unreasonably high level
for Eighth Amendment purposes. See Pryor-El v. Kelly,
892 F. Supp. 261, 267 (D.D.C. 1995).
Conversely, the plaintiff in Helling was confined in a cell
with an inmate who smoked five packs a day. In Atkinson, the
plaintiff was a former cigarette smoker who was diagnosed with
childhood asthma and was believed to have sensitivity to his
nasal passages and airways. During a seven-month period, he was
housed with two inmates, each of whom smoked constantly while in
the cell. He shared another cell with a constant smoker for six
weeks and, at a later date, with a cellmate who smoked ten
cigarettes per day. Based on the above, it does not appear that
Hodgins could meet the prong of the analysis requiring him to
establish that he was exposed to levels of ETS that pose an
unreasonable risk of serious damage to his future health.
IV. Order. AND NOW, this 13th day of June 2005, IT IS HEREBY
1. Defendants' motion to dismiss (Doc. No. 21) is GRANTED;
2. The Clerk of Court is directed to CLOSE this case;
3. Any appeal from this Order is deemed frivolous, not taken in
good faith, and lacking in probable cause.
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