Wilson v. Stalder ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30582
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RICHARD L. WILSON,
Plaintiff-Appellant,
versus
RICHARD L. STALDER; C. MARTIN LENSING,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 94-CV-736
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(October 19, 1995)
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Richard L. Wilson, an inmate of Hunt Correctional
Center (HCC) has requested leave to appeal in forma pauperis
(IFP) from the district court's grant of summary judgment to the
defendants in his civil rights action. We grant the motion,
reverse the district court's judgment, and remand the cause for
further proceedings.
Wilson alleged in his verified civil rights complaint that
he, a nonsmoker, has been exposed to environmental tobacco smoke
(ETS) ever since he was arrested in 1983. He alleged that this
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-30582
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has caused him headaches, nausea, and "shortage" of breath,
although he never had any health problems before. Wilson alleged
that he has repeatedly asked doctors, the warden, and other
prison policy-makers either to change the policy which allows
smoking in the inmate living areas or to house him in a
nonsmoking area. He alleged that medical doctors at Charity
Hospital in New Orleans have told him that his health problems
are caused by ETS and that his medical records also show this.
Wilson alleged further that prison officials have exposed
him to levels of ETS which pose an unreasonable risk of damage to
his future health. He asserts that they have acted with
deliberate indifference, which constitutes cruel and unusual
punishment. As defendants, Wilson named Warden C. Martin Lensing
(the Warden) of Hunt Correctional Center (HCC) and Richard
Stalder, Secretary of the Louisiana Department of Public Safety
and Corrections. Wilson requested a restraining order to prevent
future violations of his rights. He also requested compensatory
and punitive damages, including compensation for his future
medical expenses.
Wilson attached to his complaint a copy of an administrative
remedy proceeding (ARP) request which he sent to the Warden.
Therein, Wilson complained that, although Stalder had approved a
policy that inmates are prohibited from smoking in bed and in
other designated no-smoking areas, the policy is not being
enforced. He stated that smoking inmates have 33 "butt cans" per
section in the bed area and 10 cans in the TV area of his dorm.
The defendants filed copies of the relevant ARP documents.
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Lensing stated in his response, dated December 28, 1993, that
because most of the inmates smoked, the administration did not
intend to change its policy of allowing them to smoke in their
dorms. Stalder's response to the ARP was that the Warden's said
policy was acceptable to him.
Lensing and Stalder filed a motion for summary judgment with
a "Statement of Undisputed Facts," a memorandum, and voluminous
exhibits. Among their exhibits were Wilson's prison medical
records, affidavits of Dr. Frank Dienst and HCC Deputy Warden
Mariana Leger, and HCC's relevant policy statements.
Wilson also moved for summary judgment, with a supporting
memorandum and numerous exhibits, many of which were duplicates
of the defendants' exhibits. However, he did not attach his own
affidavit or state that his memorandum, which alleges facts, was
made under penalty of perjury, 28 U.S.C. § 1746. Although he did
not specifically refer to defendants' "Statement of Undisputed
Facts," he controverted several of its averments.
The magistrate judge recommended granting summary judgment
to the defendants, apparently crediting their supporting
materials, including their "Statement of Undisputed Facts." The
magistrate judge found that Wilson "suffers from seizures,
hypertension, angina, vision impairment and has experienced
shortness of breath during exertion." The magistrate judge found
further that Wilson has not complained of or been treated for
respiratory problems, and has not complained to prison medical
personnel regarding exposure to ETS. Crediting Dr. Dienst's
affidavit, the magistrate judge found that Wilson's "health
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problems are not the result of exposure to ETS," and that his
assertion that his health is declining as a result of ETS is
speculation. Id.The magistrate judge found that, assuming Wilson "has been
exposed to ETS as alleged, the summary judgment evidence showed
that the defendants have responded with policies and regulations
designed to minimize the risk of adverse health effects as a
result of exposure to ETS." In support, the magistrate judge
relied on the fact that dorm Fox 7 is smoke-free, without
adverting to Wilson's assertion that this is a special
paramilitary unit. The magistrate judge noted that smoking in
Fox 2, where Wilson is confined, is now restricted to the dayroom
during limited hours. The magistrate judge also relied on
Wilson's admission that "he did not request a transfer to a
smoke-free area, . . . because there would be more restrictions
on his liberty in that area." In conclusion, the magistrate
judge stated: "Despite [Wilson's] assertion that these policies
and regulations are not rigorously enforced, the evidence in the
record is insufficient for a reasonable factfinder to conclude
that their administration is so ineffective that it constitutes
deliberate indifference to [Wilson's] serious medical needs."
Wilson filed objections to the magistrate judge's report,
pointing out that it is undisputed that his health has worsened
during his confinement. He also asserted that "[m]edical opinion
that ETS is harmful to persons so exposed is overwhelming and
that harm is increased tremendously when serious pre-existing
conditions, such as suffered by Wilson, are present." He relies
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on his summary-judgment memo and attached exhibits, several of
which are newspaper and magazine articles stating that ETS
increases the risk of death from heart disease and lung cancer.
Wilson noted that his assertion that 85% of the inmates in his
dorm smoke and that most of them smoke in the living area, is
unrefuted. He averred that there are material facts in dispute,
i.e., whether HCC's policy is sufficient to eliminate concerns
about ETS and whether the policy is being enforced properly.
Wilson contended that it would be unsound legally to hold
that he cannot assert his ETS claim until after his life is
shortened by the exposure to ETS. He asserted that, considering
the medical evidence, it would be erroneous to hold that his
claim is only speculation. Wilson argued that the defendant's
claim that ETS does not contribute to his declining health is
mere speculation. The district court, adopting the magistrate
judge's report, granted the defendants' summary-judgment motion
and denied Wilson's.
Wilson requests that this court grant him leave to appeal
IFP. To obtain such leave, he must demonstrate that he is
impecunious and that he will present a nonfrivolous issue on
appeal. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). An
appeal is not frivolous under 28 U.S.C. § 1915(a) if it "involves
legal points arguable on their merits." Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983) (citations and quotation marks omitted).
Wilson contends that the district court erred by granting
summary judgment to Stalder and Lensing. He requests this court
to order them to "establish a smoke free dorm(s) as needed to
No. 95-30582
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protect Wilson, and other non-smokers, from ETS exposure and the
health risk caused by such exposure." As he conceded elsewhere
in his brief and in his objections to the magistrate judge's
report, however, Wilson can seek relief only for himself, not for
other inmates. Coon v. Ledbetter, 780 F.2d 1158, 1160 (5th Cir.
1986).
Wilson contends that he is entitled to reversal on grounds
that Stalder and Lensing have been deliberately indifferent to
his health and safety. "Wilson asserts that the fact that
exposure to ETS generally, and [of] previously ill persons
specifically, is a serious health problem is overwhelming,
generally accepted by all medical experts. . . ." He argues that
appellees' deliberate indifference is shown by their failure to
enforce their policy concerning ETS. He states that he "is
confined to a small area with smokers all around him, smoking
excessively." He iterates his assertion that the current
policies would not sufficiently rid the inmates' living areas of
ETS even if they were enforced, because smoking is allowed in
television rooms which are not partitioned off from the rest of
the living areas.
Rule 56(c), Fed. R. Civ. P., provides that the district
court shall render summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." To avoid summary
judgment, the opposing party "by affidavits or as otherwise
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provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This
court's standard of review of a summary-judgment ruling is the
same as the district court's, and it must be based on the
evidence which was presented in the district court. See Sanders
v. English, 950 F.2d 1152, 1159 (5th Cir. 1992).
This court has held that litigants, even if pro se, cannot
oppose motions for summary judgment with unsworn statements.
Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980). Wilson's
verified complaint, nevertheless, may be considered as summary-
judgment evidence. RTC v. Starkey, 41 F.3d 1018, 1024 (5th Cir.
1995).
Wilson contested appellees' unsworn "Statement of
Uncontested Facts" with his own such statement and his memorandum
in support of his own motion for summary judgment. These,
together with the sworn allegations of Wilson's complaint, show
that the district court erred by granting summary judgment to the
appellees. Dr. Dienst's statement that Wilson's "medical
problems [do] not arise from . . . being exposed to tobacco
smoke," cannot be dispositive of Wilson's claims, because
"unsupported . . . affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to
either support or defeat a motion for summary judgment." Galindo
v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
In (Willard) Wilson v. Lynaugh, 878 F.2d 846, 849 (5th
Cir.), cert. denied, 493 U.S. 969 (1989), this court held, in a
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case involving an ETS claim, that "conditions of confinement
which expose inmates to . . . identifiable health threats
implicate the guarantees of the Eighth Amendment." The court
held that "the district court did not abuse its discretion in
dismissing [that] case under [28 U.S.C.] § 1915(d) as frivolous
because it is duplicative," but cautioned that "this decision has
limited significance in terms of stare decisis." Id. at 851.
In Helling v. McKinney, 113 S. Ct. 2475, 2481 (1993), the
Court rejected the prison officials' contention "that only
deliberate indifference to current serious health problems of
inmates is actionable under the Eighth Amendment." The Court
affirmed the Ninth Circuit's holding "that McKinney state[d] a
cause of action . . . by alleging that petitioners have, with
deliberate indifference, exposed him to levels of ETS that pose
an unreasonable risk of serious damage to his future health."
Id. The Court held that upon remand, McKinney "must also
establish that it is contrary to contemporary standards of
decency for anyone to be so exposed against his will and that
prison officials are deliberately indifferent to his plight."
Id.Wilson also asserted in his complaint that his exposure to
ETS since being incarcerated had caused him headaches, nausea,
and shortness of breath. See Weaver v. Clarke, 45 F.3d 1253,
1256 (8th Cir. 1995) ("Weaver alleges deliberate indifference to
his existing ill health."). He stated that he has repeatedly
asked the doctors, the Warden, and other prison policy-makers
either to change the policy which allows smoking in the inmate
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living areas, or to house him in a nonsmoking area. Wilson
asserted that physicians at Charity Hospital in New Orleans have
told him that his health problems are caused by ETS. He alleged
further that the defendants, with deliberate indifference, have
exposed him to levels of ETS which pose an unreasonable risk of
damage to his future health.
The ARP record filed by appellees shows that Wilson
complained to them that the restricted-smoking policies were not
being enforced. Specifically, Wilson complained that inmates in
his dorm kept butt cans by their beds, where they smoked in
violation of the posted policy. Warden Lensing replied that they
did not plan to change their policy of allowing smoking in the
living areas of the dorms. Stalder denied relief, stating that
the warden's position was acceptable to him. Although the policy
was revised on June 29, 1994, after Wilson filed suit, appellees'
summary-judgment materials do not contradict Wilson's assertion
that this policy is not being enforced. This assertion has been
brought to appellees' attention by Wilson's memorandum and other
material he filed in support of his summary-judgment motion.
Because there are genuine issues relative to material facts, the
district court should not have granted summary judgment to
appellees. See Sanders v. English, 950 F.2d at 1154-55.
REVERSED AND REMANDED.