The opinion of the court was delivered by: Eduardo C. Robreno, J.
Plaintiff Hitham Abuhouran ("Abuhouran"), a pro se prisoner, brings this claim of negligence against the United States (the "Government") under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA") for exposing him to excessive amounts of environmental tobacco smoke ("ETS") while in prison. Because Abuhouran fails to raise a genuine issue of material fact concerning negligence on the part of the Government, the Government's Renewed Motion for Summary Judgment will be granted.
The following facts are taken from the complaint, accepted as true, and are viewed in the light most favorable to the plaintiff. Abuhouran was an inmate at Federal Detention Center ("FDC") Philadelphia from July 2, 2002 until February 4, 2004. He alleges that he was injured as a result of an "inadequate" ventilation system at FDC Philadelphia. (Compl. ¶ 60.) He claims that upon arrival to FDC Philadelphia, he was placed with a cellmate who smoked 3 to 4 packs of cigarettes every night. Abuhouran complained and was transferred to another cell. This new cell, however, leaked when it rained. He complained again and was transferred this time to a cell occupied by another smoker. He complained again but this time he was not transferred for several months.
While at FDC Philadelphia, Abuhouran also made requests that the Warden enforce various non-smoking policies which were in place, but these requests were ignored. According to Abuhouran, FDC Philadelphia was crowded beyond capacity and the ventilation system was inadequate to deal with such a large prison population, particularly in light of the amount of smoking taking place at FDC Philadelphia.
Throughout this period, Abuhouran alleges that he suffered from asthma and that the asthma was aggravated by the smoke. He also claims that he was retaliated against by prison officials for his complaints, including being placed in administrative segregation. On February 4, 2004, Abuhouran was transferred back to Federal Correction Institute ("FCI") Elkton, where he had been held before arriving at FDC Philadelphia.
Abuhouran asserts that the Government is liable under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"), for its failure to provide a properly ventilated facility while he was incarcerated at FDC Philadelphia thereby exposing him to excessive amounts of environmental tobacco smoke ("ETS").
Abuhouran filed the instant action in the Northern District of Ohio alleging claims under the FTCA based on the actions of federal prison officials in Ohio and Pennsylvania. The Northern District of Ohio dismissed all the claims against the Ohio officials based on res judicata from a previous ruling, and against the Pennsylvania officials for failure to exhaust administrative remedies. The only claim remaining is against the Government and is based on an "inadequate" ventilation system at FDC Philadelphia.
On June 12, 2007, at the request of the Government, this matter was transferred from the Northern District of Ohio to this court, pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1404(a) and "for the convenience of the parties and witnesses."
The Government concedes Abuhouran has exhausted all of his administrative remedies related to his FTCA claim of "inadequate" ventilation at FDC Philadelphia. Thus, the motion is ripe for disposition.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the ...