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Rosario v. Bureau of Prisons

March 27, 2007

DIOGENES A. ROSARIO, PLAINTIFF,
v.
BUREAU OF PRISONS, DEFENDANT



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

MEMORANDUM AND ORDER

Plaintiff Diogenes A. Rosario ("Rosario") commenced this action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq., alleging negligent exposure to environmental tobacco smoke ("ETS") while incarcerated at the Federal Correctional Institute at Allenwood ("FCIAllenwood"). (Doc. 1). Presently before the court is defendant's motion for summary judgment. (Doc. 12). For the reasons set forth below, defendant's motion will be granted.

I. Statement of Facts*fn1

Rosario entered into the custody of the Federal Bureau of Prisons ("BOP") on April 1, 2002.

During admission at the Federal Detention Center in Brooklyn, New York, he reported that he was in "good health." (Doc. 14-2, Ex. 2, Attachment ("Att.") 1, p. 10). Although he had a history of asthma since childhood, he had not suffered an episode for more than three years. (Id.). He was received at FCI-Allenwood on April 10, 2002. He again reported that he had asthma but that he was not experiencing any problems at the time. His medical examination was normal. (Id. at p. 13).

The smoking policy in effect at the time he arrived at FCI-Allenwood established designated smoking and non-smoking areas. The SHU and Units 3A and 3B were designated as non-smoking housing units. (Id. at Att.) 2). Assignment to non-smoking housing units was based upon non-smoking preference as determined at Intake Screening. (Id.). No tobacco or tobacco products were allowed to be utilized or stored anywhere in these areas. (Id.). Conversely, in Units 1, 2 and 4, smoking was allowed in inmate cells, but the common areas were designated non-smoking areas. When Rosario arrived at FCI-Allenwood on April 10, 2002, he was housed in the Special Housing Unit ("SHU"). (Doc. 14-2, Exhibit ("Ex.") 1, ¶ 3). He did not indicate that he preferred to be housed in the non-smoking unit. Shortly after his arrival, he was moved to general population and, within a short time period, was assigned to Housing Unit 2, where he is presently housed. (Id.).

In April 2004, a memorandum stating that no later than July 15, 2004, "institutions within the Federal Bureau of Prisons facilities will be free of second hand smoke (specifically inside all buildings)" was issued to the inmate population. (Doc. 14-2, Ex. 1, Att. 3). On June 21, 2004, the policy was amended to ban smoking inside all buildings. Hence, from this point forward, Rosario was housed in a smoke free unit. The policy further designated all outside areas as smoking areas for staff and inmates. (Id. at Att. 4). "Smoking will not take place at or near the entrance to any building where nonsmokers will be subjected to second hand smoke." (Id.). According to Rosario, despite this policy, "inmates frequently smoked inside the cells['] common areas, showers, mop closets etc., and still smoke there [until] this day." (Doc. 16, p. 9, ¶ 1). The policy was amended in September 2004, to limit the outside areas designated as smoking. (Id. at Att. 5).

On October 26, 2004, Rosario was sent to the medical department because of an "asthma attack." (Doc. 14-2, Ex. 2, Att. 1, p. 17). Because the examination revealed no evidence of wheezing or coughing, he was directed to purchase cold medication from the commissary. (Id. ). Within a month, Rosario again complained of having an asthma attack. He was coughing, short of breath and anxious. Based on the presence of wheezing and rhonchi in both lungs, he was given a nebulizer treatment, placed on an antibiotic and an inhaler. He was monitored over the course of the next several months by the pulmonary clinic. (Id. at p. 17-24). During that time period, he continued his medications and was given a chest x-ray. (Id.). On February 10, 2005, Rosario reported that his condition had improved.

In April 2005, he reported to sick call complaining of a non-productive cough, shortness of breath at night, chest tightness and palpitations. (Id. at p. 25). He was diagnosed with acute bronchitis and asthma exacerbation and treated with an oral steroid and antibiotic and was directed to continue his inhaler and follow-up with the pulmonary care clinic the next week. (Id. at p. 26). He was also placed on a Holter Monitor for monitoring to check if he had any "events." (Id.). The Holter monitor was removed the next day and he was later verbally informed of the results. (Id. at pp. 26, 29).

His pulmonary clinic evaluation on May 5, 2005, revealed clear lungs and normal lung expansion. His treatment regimen was continued. (Id. at p. 28). Less than a week later, he reported that his symptoms had not improved. He was advised to increase the use of the steroid inhaler. (Id. at 29).

Plaintiff sought medical treatment again in August 2005. He complained that, in the morning, he suffered from tightness in his chest and shortness of breath, sinus pressure and congestion. (Id. at p. 30). He appeared "non-distressed, healthy, well nourished." (Id.). His chest exam revealed normal expansion, and no wheezes, rhonchi, rales or sound. He was diagnosed with "chronic care flu asthma." (Id. at p. 31). His medication was continued and he was directed to report back in one week for follow-up on his flu symptoms. On August 26, 2005, although he felt his symptoms had improved, he continued to suffer from chest tightness, cough, shortness of breath and wheezing. He was diagnosed with asthma exacerbation, placed on an oral steroid and asked to report back in one week.

The next time Rosario sought treatment was when he reported to the pulmonary clinic in November 2005. A radiograph of his chest revealed "clear lung fields throughout." (Id. at p. 38). He was continued on his medication regimen at that time and at each of his future visits to the clinic. (Id. at pp. 33-34, 40-41, 43-45).

On each of his visits to the pulmonary care clinic, Plaintiff was asked whether he smoked and whether he was educated on avoiding tobacco, inter alia. (Id. at pp. 20, 24, 28, 31, 34, 37, 41, 44; Doc. 16, ¶ 6). There are no entries or notations in the medical records that Rosario ever complained of tobacco smoke or stated that tobacco smoke triggered his symptoms. (Doc. 14-2, Ex. 2, ¶ 20). Further, "[a] search of records has revealed that the Plaintiff never filed any grievance about being housed in a unit which was designated for smoking. Likewise, the Plaintiff never requested to be moved to the non-smoking unit, Unit 3." (Doc. 14-2, Ex. 1, ¶ 13).

Remarkably, commissary records indicate that between the dates of June 19, 2002 and March 2, 2005, Rosario purchased 192 packs of tobacco products. He purchased 106 packs of Middleton Black & Mild Cigars, thirty-nine packs of Bugler tobacco, twenty-seven packs of Newport Box, eleven packs of Marlboro Box, six packs of Kool Box and three packs of Kite tobacco. Approximately 151 packs were purchased prior to the date smoking was banned in all housing units. In response plaintiff states that he ...


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