The opinion of the court was delivered by: Judge Conner
Plaintiff, Robert Panton ("Panton"), a federal inmate confined, at all times relevant, to the Federal Correctional Institution at Schuylkill ("FCI-Schuylkill"), commenced this civil rights action on February 19, 2004, alleging that he was exposed to second-hand environmental tobacco smoke ("ETS") in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Presently pending are cross-motions for summary judgment pursuant to FED. R. CIV. P. 56.
(Docs. 104, 107). For the reasons set forth below, defendant's motion (Doc. 104) will be granted and plaintiff's motion (Doc. 107) will be denied.
On July 1, 1994, the Bureau of Prisons ("BOP")issued Program Statement 1640.03 stating that "[t]o advance towards becoming a clean air environment and to protect the health and safety of staff and inmates, the Bureau of Prisons will restrict areas and circumstances where smoking is permitted within its institutions and offices." (BOP Program Statement 1640.03, Doc. 106-4, p. 6)*fn1 . "All areas of Bureau of Prisons facilities and vehicles are no smoking areas unless specifically designated as a smoking area by the Warden. . . ." (Doc. 106-4, p. 8). Although the Warden was given explicit discretion to make such decisions, the program statement also provided that "[t]o the maximum extent practicable nonsmoking inmates shall be housed in nonsmoking living quarters." (Id. at p. 10). At the pertinent time, the warden at FCI-Schuylkill was R. M. Reish ("Reish"). On March 6, 2000, in an effort to "advance towards a clean air environment within the Federal Correctional Institution, Schuylkill, to protect the health and safety of Staff and inmates," Warden Reish issued an "Institution Supplement"*fn2 specifically designating smoking and non-smoking areas inside*fn3 and outside the institution. (Institution Supplement 1640.03, Doc. 106-4, pp. 20-21).
The above regulations were in effect when John Nash ("Nash") assumed his role as warden at FCI-Schuylkill in November 2001. No new Program Statements were issued during his tenure and he made no changes to the Institution Supplement. (Doc. 108-3, p. 16, dep. pp. 61-62). On April 7, 2003, Nash issued a memorandum to the inmate population regarding complaints he received concerning exposure to secondhand smoke in common areas within the housing units. (Nash 4/7/03 memorandum, Doc. 106-2, p. 42). Nash advised inmates that smoking regulations would be "vigorously" enforced. (Id.). He further reminded inmates that ". . . smoking is not authorized in common areas within the housing units. Smoking is only authorized in individual cells with doors in the closed position, preventing exposure to others within the unit. Additionally, two man cells will be identified as non-smoking rooms if one of the occupants is a non-smoker. All common area cells will be designated as non-smoking living areas. Inmates housed in these areas will not be allowed to smoke in their cells at any time." (Id.). A town meeting on the subject was also held by the Unit Managers. (Doc. 106-2, p. 30).
At this time, "Unit Rules and Regulations" were posted inside a locked bulletin board located on each side of the housing unit stating the following:
Smoking is permitted in individual "two man cells" with the door in the closed position. Additionally, two man cells will be identified as non-smoking cells if one of the occupants is a non-smoker.
Smoking is prohibited in all other areas of the Housing Units. (Unit Rules and Regulations, Doc. 106-2, p. 14). Individual cells were not designated with signs as either smoking or non-smoking. (Doc. 108-3, p. 20, dep. p. 76). However, inmates who violated the smoking regulations by smoking in prohibited areas were subject to sanctions through the disciplinary process. (Declaration of Unit Manager Anthony Prantow, Doc. 106-2, p. 36, ¶ 10). According to plaintiff,
"[i]nmates have been written up by staff for smoking outside their assigned cells in the unit, and given extra duty." (Doc. 1, p. 2).
Nash did not know the number or percentage of smokers, or undertake studies to determine the number of non-smokers in the facility. (Doc. 108-3, p. 18, dep. pp. 67-68). Nor did he undertake any studies to determine whether a separate dormitory was "feasible" or "practicable." (Id.).
With regard to the ventilation system, if an issue arose, such as the travel of ETS to nonsmoking cells, Nash would not conduct an independent investigation but, rather, would contact the "facilities staff." (Doc. 108-3, p. 14, dep. p. 53; pp. 38-39, dep. pp. 149-54). The facilities manager describes the institution ventilation system as follows:
The construction of FCI Schuylkill was completed in 1991. The institution was designed without air conditioning. The ventilation system does not recirculate indoor air from the two-man cells. That is, there are no air "returns" in the two-man cells; these cells have individual exhaust vents to the outdoors; therefore, air from a two-man cell designated as "smoking" could not have traveled from one cell to another via the ventilation system. Additionally, all of the cells have windows that can be opened. The windows do, however, have bars.
The "common area" cells, which are also known as dormitory-style cells, do not have ventilation directly to the outdoors. However, two of the windows in the "common area" cells can be opened to the outdoors. The windows have security screens and bars. There is a cleaning and maintenance schedule for the ventilation systems in inmate living areas. Preventative maintenance on the air-handling units is conducted quarterly, unless ...