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Mearin v. Swartz

United States District Court, Western District of Pennsylvania

April 7, 2014

THURMAN MEARIN and NATHAN RILEY, Plaintiffs,
v.
CARLA SWARTZ, Unit Manager, L-5 Unit Manager PAUL PALYA, LIEUTENANT ROBERT KENNEDY, RHU/Capital Lieutenant, sued in their individual and official capacities, and SGT. [FIRST NAME UNKNOWN] OVER, CO. 1, Defendants. Re: ECF Nos. 75, 80

REPORT AND RECOMMENDATION

MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

It is respectfully recommended that the motion for summary judgment filed on behalf of Plaintiffs (ECF No. 75) be denied. It is further recommended that the motion for summary filed on behalf of the remaining Defendants (ECF No. 80) be granted.

II. REPORT

Plaintiffs, Thurman Mearin ("Mearin") and Nathan Riley ("Riley"), who were prisoners incarcerated at the State Correctional Institution at Greene, Pennsylvania ("SCI-Greene") at the time of the events underlying this suit, bring this pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that they were exposed to excessive amounts of second-hand or environmental tobacco smoke ("ETS") in violation of their rights provided by the Eighth Amendment. Following this Court's order dismissing certain Defendants, Mearin's claim remains pending against Unit Manager Carla Swartz and Unit Manager Paul Palya, and Riley's claim remains pending against Swartz, Lt. Robert Kennedy and Corrections Officer ("CO.") Kelly Over. Mearin indicates that he is now incarcerated at SCI-Forest. (ECF No. 88).

Presently pending before the Court are cross-motions for summary judgment. For the reasons that follow, Plaintiffs' motion should be denied and Defendants' motion should be granted.

A. FACTS [1]

1. Mearin's History of ETS Complaints

Prior to his transfer to SCU-Forest, Mearin had been incarcerated at SCI-Greene since 2005, following a transfer from SCI-Graterford. (Defs.' App. Ex. I).[2] Since July 3, 2009, Mearin was celled in E-Block for the following time periods: August 22, 2008 to July 24, 2009; December 29, 2009 to February 19, 2010; May 25, 2010 to December 2, 2010; and December 7, 2010 to February 15, 2012. Carla Swartz was the Unit Manager of E-Block during that time period. (Swartz Decl. ¶ 1).[3]

Since July 3, 2009, Mearin was celled in D-Block for the period of July 24, 2009 to October 27, 2009. (Defs.' App. Ex. 1). Paul Palya was the Unit Manager of D-Block during that time period. (Palya Decl. ¶ 1).[4]

SCI-Greene has a no-smoking policy in effect for inmates and staff that became effective September 11, 2008. (Defs.' App. Ex. 4). In accordance with the policy, smoking is not permitted inside the facilities at SCI-Greene. Staff or inmates who are caught smoking inside the facility of SCI-Greene are subject to penalties. Defendants state that the no-smoking policy is enforced by corrections officers and officials at SCI-Greene. (Swartz Decl. ¶¶ 6-8; Palya Decl. ¶¶ 4-7; Kennedy Decl. ¶¶ 2, 7-8;[5] Over Decl. ¶¶ 4-8).[6] Plaintiffs deny that the policy is enforced, citing the grievances they filed and the declarations of other inmates they have submitted. (ECF No. 1: Exs. A, B, C, D, E, F, G; ECF No. 39: Exs. 1, 2, 8, 14, 20; ECF No. 78: Ex. 1).

Because SCI-Greene has a no-smoking policy, an inmate's smoking preferences are not considered when deciding where and with whom to cell an inmate. (Swartz Decl. ¶ 6; Palya Decl. ¶ 7). Unit Manager Swartz states that she is aware of few instances of inmates smoking in E-Block. She has rarely if ever caught an inmate smoking and rarely has ever smelled smoke. She states that, if she did catch an inmate smoking, that inmate would be reprimanded or issued a misconduct. (Swartz Decl. ¶¶ 7-8).[7]

Unit Manager Palya is aware of occasional instances in which inmates would try to sneak smokes in D-block. (Palya Decl. ¶ 5). Generally, the corrections officers in D-block enforced the no-smoking policy through progressive discipline. An inmate's first smoking offense would generally result in a reprimand, and the second offense would result in a misconduct. (Palya Decl. ¶ 6).[8]

Unit Manager Swartz remembers Mearin from his stay in E-Block. (Swartz Decl. ¶ 4). Unit Manager Palya remembers Mearin from his stay in D-block. (Palya Decl. ¶ 2). Mearin always wanted single-cell status but was not eligible for it. (Swartz Decl. ¶ 5; Palya Decl. ¶ 3).[9] He frequently complained about his cellmates. One way he complained about his cellmates was by accusing them of smoking in the cell. (Swartz Decl. ¶ 5).

Mearin filed nine grievances related to smoking between 2009 and 2012. (Defs.' App. Exs. 6, 9, 11, 13, 15, 17). The first was Grievance #279939, dated July 7, 2009, in which Mearin complained that his cellmate smoked. (Defs.' App. Ex. 6). Grievance #279939 was denied and appealed through final review. The grievance mentions Unit Manager Swartz but not Unit Manager Palya. (Defs.' App. Ex. 6).

On November 7, 2011, Mearin wrote an Inmate's Request to Staff Member directed to Unit Manager Swartz. (Defs.' App. Ex. 7). Mearin complained that he was being celled with inmates who smoke. He also wrote, "Ms. Swartz, I've been in prison for 30 years today. You know I don't get along with cellies. What is preventing you from placeing (sic) me in a cell by myself, (sic) Do you hate me that much?" Unit Manager Swartz responded: "This is not a personal issue at all. I do not hate anyone. You simply do not meet the requirements for a Z code and I cannot put you in one. If you can find someone to cell with, let me know and we will make sure you are kept together." (Defs.' App. Ex. 7).

On November 8, 2011, Mearin's medical records indicate he complained that he had a headache which he attributed to an inmate who smoked in his cell. He was seen by Dr. Jin, who advised him to buy Motrin from the commissary and to discuss it with his unit manager. (Defs.' App. Ex. 8).

The next smoking-related grievance filed by Mearin was Grievance #389361, dated November 10, 2011, in which he complained that his cellmate, Inmate Harris (JC3798), smoked in the cell. (Defs.' App. Ex. 9). Grievance #389361 was denied and appealed through final review. The grievance mentions Unit Manager Swartz but not Unit Manager Palya. (Defs.' App. Ex. 9). At the time Mearin filed Grievance #389361, he was housed in cell 2047 in block E-A. (Defs.' App. Ex. 1). Inmate Harris was housed in cell 2047 from November 15 to 21, 2011, a total of seven days. (Defs.' App. Ex. 10). In the final appeal decision, Mearin was notified that: "If you have a cellmate who is smoking in the cell, it is your responsibility to report the violation to your block officer." (Defs.' App. Ex. 9).

On November 21, 2011, Mearin's medical records indicate that he complained about a cellmate who smoked, which he claimed gave him a headache and a stomachache. (Defs.' App. Ex. 8). He was seen by Dr. Park who prescribed him Fioricet as needed. According to the U.S. National Library of Medicine, National Institutes of Health, Fioricet is a combination of acetaminophen, butalbital, and caffeine that is used to treat tension headaches (Fioricet listed at bottom under brand names). (Defs.' App. Ex. 8b).

The next smoking-related grievance was Grievance #390244, dated November 22, 2011, in which Mearin complained that his cellmate, Inmate Smith (KB5484), smoked. (Defs.' App. Ex. 11). Grievance #390244 was denied and appealed through final review. The grievance mentions Unit Manager Swartz but not Unit Manager Palya. (Defs.' App. Ex. 11). At the time Mearin filed Grievance #390244, he was housed in cell 2047 in block E-A. (Defs' App. Ex. 1). Inmate Smith was housed in cell 2047 from November 22 to 29, 2011, a total of eight days. (Defs.' App. Ex. 12).

The next smoking-related grievance was Grievance #392716, dated December 7, 2011, in which Mearin complained that his cellmate, Inmate Bullins (CU5278), smoked. (Defs.' App. Ex. 13). Grievance #392716 was denied and appealed through final review. The grievance mentions Unit Manager Swartz but not Unit Manager Palya. (Defs.' App. Ex. 13). At the time Mearin filed Grievance #392716, he was housed in cell 2047 in block E-A. (Defs.' App. Ex. 1). Inmate Bullins was housed in cell 2047 from December 6 to 9, 2011, a total of four days. (Defs.' App. Ex. 14).

The next smoking-related grievance was Grievance #392733, dated December 13, 2011, in which Mearin complained that his cellmate, Inmate Wright (FR1841), smoked. (Defs.' App. Ex. 15). Grievance #392733 was denied and appealed through final review. The grievance mentions Unit Manager Swartz but not Unit Manager Palya. (Defs.' App. Ex. 15). At the time Mearin filed Grievance #392733, he was housed in cell 2047 in block E-A. (Defs.' App. Ex. 1). Inmate Wright was housed in cell 2047 from December 13 to 28, 2011, approximately two weeks. (Defs.' App. Ex. 16).

Mearin filed four smoking-related grievances in 2012, when he was celled in block B-A in cell 2059. (Defs.' App. Ex. 17). He does not mention Unit Managers Swartz or Palya in any of those grievances but complains of three cellmates who smoked, Inmates Davis (KD2441), Amante (KD0935), and Holmes (KA2044). (Defs.' App. Ex. 17). Those inmates were collectively celled with Mearin from June 12 to August 7, 2012 and from October 2 to 18, 2012, a total of a little over two months. (Defs.' App. Ex. 18).

When directed by the grievance officer to submit a request to be celled with an inmate with whom he would be compatible, Mearin wrote: "The problem is I'm not compatible with no prisoners and no one can force me to do it." (Defs.' App. Ex. 17, ECF No. 83-2 at 62). See also id. at 65 ("I've been in prison for 30 years, I'm not compatible with no prisoners and I never will be"); ii at 68 ("This is the suggestion even when it is documented that grievant is not compatible with any prisoners.")

Unit Manager Swartz has no personal knowledge of any of Mearin's cellmates smoking in the cell. (Swartz Decl. ¶ 9). She has no personal knowledge of any health problems suffered by Mearin as a result of second hand smoke. (Swartz Decl. ¶ 10). She has no personal knowledge of any visits to medical personnel by Mearin related to exposure to second hand smoke. (Swartz Decl. ¶ 11).[10]

Unit Manager Palya has no personal knowledge of any of Mearin's cellmates smoking in the cell. (Palya Decl. ¶ 4). Mearin did write a request to Unit Manager Palya on July 30, 2009, complaining that a cellmate smoked, but Unit Manager Palya has no personal knowledge that the cellmate actually was smoking. (Palya Decl. ¶ 4; Defs.' App. Ex. 30). Unit Manager Palya has no personal knowledge of any health problems suffered by Mearin as a result of second hand smoke. (Palya Decl. ¶ 8). He has no personal knowledge of any visits to medical personnel by Mearin related to exposure to second hand smoke. (Palya Decl. ¶ 9).[11]

Finally, Defendants note that Mearin only complained to medical staff about alleged second-hand smoke problems on November 8 and November 21, 2011, after he had already filed this lawsuit. (Defs.' App. Exs. 8, 8a). Mearin denies this ...


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