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Gerald Funk v. Charles Custer

March 31, 2011

GERALD FUNK,
PLAINTIFF,
v.
CHARLES CUSTER, ET AL., DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Gerald Funk ("Funk"), an inmate at the State Correctional Institution at Coal Township (SCI-Coal Township), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983. Named as Defendants are Jeffery Beard, former Secretary of the Pennsylvania Department of Corrections, and Dr. Stanish, a physician contracted to provide medical services to SCI-Coal Township inmates. Also named as Defendants are SCI-Coal Township employees David Varano, Superintendent, and Charles Custer and John Dunn, Unit Managers. The matter proceeds on an amended complaint wherein Funk alleges that Defendants violated his First and Eighth Amendment rights when they subjected him to environmental tobacco smoke ("ETS") in violation of a medical order and retaliated against him for filing grievances and complaining about said exposure. (Doc. No. 17.) Presently before the Court for consideration are motions to dismiss the complaint filed by Dr. Stanish (Doc. No. 18) and the Corrections Defendants (Doc. No. 23.)

I. Allegations in Amended Complaint

By way of general background, Funk states that he is a non-smoker who has been diagnosed with Allergic Rhinitis as well as strong allergic reactions to sulfur compounds and chemical components found in cigarette smoke. He claims that his reactions have become worse over time due to repeated and prolonged exposure to cigarette smoke. For nearly a decade he states he has been prescribed medications to treat his symptoms. Due to his condition, he states that Dr. Weisner, who appears to be a prison physician at SCI-Coal Township, issued medical orders that he not be exposed to cigarette smoke or other indoor or environmental pollutants. Funk states that his repeated exposure to cigarette smoke, mainly through being celled with smokers, has resulted in many trips to the prison medical department. These symptoms include "pouring" nose bleeds, severe headaches, regurgitation, coughing, breathing difficulties, dizziness, hives, sneezing, and congestion. (Doc. No. 17 at 3.) Funk also experiences other side effects from smoke exposure including sleep deprivation, irritability, fatigue, loss of appetite, anxiety, and depression. He claims that Defendants, as well as other prison officials, are well aware of his extensively documented medical reaction to cigarette smoke and of the physician's order not to expose him to smoke. He alleges that Defendants' conduct has been the subject of numerous grievances and appeals.

Funk also notes that during an intake medical screening at SCI-Camp Hill in May 1999, the medical staff incorrectly listed his allergies as fish, shellfish, and wool instead of allergic rhinitis and compound allergies to smoke and sulfur. He does state, however, that this mistake was later corrected in his records prior to his confinement at SCI-Coal Township and the incidents complained of in the instant action. Funk also points out that there was another incorrect entry in his medical record stating that he had smoked twelve cigarettes a day. Funk clarifies this entry by admitting that he used to "burn" a half pack of self-rolled cigarette tobacco each day for the purpose of Native American smudging-a purification and prayer practice. (Id. at 4.) However, he strongly emphasizes that the tobacco was not smoked during this process.

According to Funk, he ceased this practice in 2001 due to his strong reaction to the smoke. He further claims that due to his repeated exposure to cigarette smoke he had to cease attending Native American worship services where tobacco and sweet grass are burned.

Specifically with respect to his claims against the Defendants, Funk states that he arrived at SCI-Coal Township on June 16, 2009. At this time he informed intake officers and a nurse that he was allergic to smoke and needed to be celled with non-smokers. However, he was placed in a "smoke-filled" dormitory with three heavy smokers and poor ventilation. Complaints to unidentified block officers were unsuccessful. Funk thereafter had a reception interview with a nurse the same day, informed her of his allergies, and complained about his housing assignment. He witnessed the nurse record his allergy to Bactrim and cigarette smoke. Due to his complaints for allergy symptoms, she provided him with Motrin, Benadryl and Claritin. When the nurse inquired as to why Funk was not "z-coded," Funk stated that he had always entered into cell agreements with non-smokers at his prior place of confinement.*fn1

While confined in the dormitory, Funk witnessed prison personnel repeatedly smoking at the door of the dormitory which resulted in smoke blowing into the dorm and causing him to suffer severe reactions. Funk submitted a sick call request on June 21, 2009. The following day, Funk was seen in the medical department and told to take extra Claritin. He was further advised to return in a week at which time Benadryl would be prescribed.

On June 24, 2009, Funk submitted a grievance with respect to his housing assignment. It is his belief that Defendant Custer removed the grievance from the dropbox to prevent it from being processed. (Doc. No. 17 at 5.)

On or about June 25, 2009, Custer informed Funk that he was keeping Funk in the dorm for at least sixty days because Funk was trying to cause trouble by complaining about smokers. Custer informed Funk that Custer ran the block, not the medical department. (Id. at 6.) Custer also told Funk to stop filing grievances and ignored information provided to him by Funk about a non-smoker who was willing to cell with Funk.

Funk voiced further complaints to block officers about the smoke in the dorm from June 25, 2009, through June 28, 2009. On June 28, 2009, Funk was moved to FB-54 pursuant to an order issued by Custer. In FB-54, Funk was double-celled with George Scherbenco, a known heavy smoker. On July 2, 2009, Funk submitted a sick call request due to his exposure to smoke. Between July 9, 2009, and July 15, 2009, Funk and his cellmate Scherbenco tried to work out an arrangement with Defendant Custer whereby Scherbenco would move back in with his old cellmate and Funk would be celled with inmate Boyd Knouse, a non-smoker. An inmate request indicating all of the same information was also sent to Custer by Knouse.

On July 16, 2009, Funk was evaluated by Dr. Weisner, who issued written orders that Funk not be exposed to cigarette smoke due to medical allergies to smoke. (Doc. No. 17 at 6.) Funk was advised to inform any officer who violated the orders to contact Dr. Weisner, Corrections Health Administrator Kathryn McCarty, or any medical staff member. Funk informed the block officers and Custer of Dr. Weisner's orders upon his return to his block. Over the next several days a number of cell changes were made to accommodate inmate cell preferences, and although certain cells were empty, Funk remained celled with Scherbenco. On July 21, 2009, Scherbenco told Custer that he smokes in the cell and about the problems Funk was experiencing including breathing difficulties, nosebleeds, headaches and hives. (Id. at 7.)

Scherbenco also reminded Custer about Funk's medical orders. Custer responded that he was not going to do anything to benefit "that nut" and that Funk could suffer for a while. (Id.)

Funk submitted a grievance on July 23, 2009, complaining about Custer's conduct and Custer's violation of the medical order not to expose Funk to smoke. The grievance was supplemented on July 29, 2009. On August 12, 2009, the grievance was denied as meritless. An appeal to Varano was denied, as was a final level appeal therefrom.*fn2

During the latter part of July 2009, Funk states that beds opened up in several cells. On July 29, 2009, Scherbenco was finally moved. At that time, Funk reminded Custer that he required a non-smoking inmate and that Knouse wanted to cell with him. Instead, Custer moved James Barlow, a known heavy smoker, into the cell with Funk. According to Funk, two days prior to this move, other inmates had complained to Custer about how Barlow was constantly smoking in the dorm. (Id. at 8.) Following a medical visit that day, Funk claims he returned to a heavily smoke-filled cell. He complained to the block officer who, in turn, called Custer. Custer told the officer that Funk was not getting a non-smoker cellmate. The same day Funk submitted a request slip to Custer again providing the name of Knouse.

Funk approached Custer with respect to these matters on July 30, 2009. Custer told him that he had called medical and there were no written orders by Dr. Weisner indicating that Funk should not be exposed to cigarette smoke. (Id. at 9.) Custer claimed that Funk's complaints were irrelevant in any event because inmates were not permitted to smoke indoors. However, Custer told Funk that if inmates were smoking, Funk should just deal with it. Funk states that Custer eventually agreed to look into celling Funk ...


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