Frederick Brown v. George Smith

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10813
June 30, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00044-CV-5
FREDERICK BROWN,
Plaintiff-Appellee,
versus
GEORGE SMITH, Warden,
in his individual and official capacity,
JIM WETHERINGTON, Commissioner of the Georgia
Department of Corrections, in his individual and
official capacity,
STEVE ROBERTS, Deputy Warden, in his individual
and official capacity,
RANDALL HOLDEN, Deputy Warden of Care and
Treatment,
in his individual and official capacity,
JACK JONES, Chief Counselor, in his individual and
official capacity,
HARRY RONEY, Warden Administrative Assistant,
in his individual and official capacity,
TONY HOWERTON, Warden, in his individual and
official capacity,
PAUL GRIECO,
JAMES L. THRIFT
Defendants-Appellants,
JOHN HEAD,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 30, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Defendants appeal from the district court’s January 13, 2006, order denying
their second motion for summary judgment, which claimed qualified immunity on
Plaintiff Frederick Brown’s 42 U.S.C. § 1983 claims.1 We affirm.
“A district court’s denial of summary judgment based on qualified immunity
is reviewed de novo, construing all facts and making all reasonable inferences in
the light most favorable to the non-moving party.” Tinker v. Beasley, 429 F.3d
1324, 1326 (11th Cir. 2005) (per curiam). “For the purposes of an interlocutory
appeal from the denial of qualified immunity, we accept the district court’s factual
determinations . . . supplementing them where necessary with additional
1
In 2001, Brown, an inmate then located at Ware State Prison, filed suit pro se against
Defendants under 42 U.S.C. § 1983, alleging that Defendants had exhibited deliberate
indifference to his serious medical needs by continually exposing him to environmental tobacco
smoke (“ETS”), which aggravated his preexisting chronic asthma and various other ailments.
2
evidentiary findings of our own from the record.” Valdes v. Crosby, 11th Cir.
2006, __ F.3d __, slip op. at 2246 (No. 05-13065, May 31, 2006). The qualified
immunity inquiry is tripartite: “(1) the alleged conduct must fall within the scope
of the discretionary authority of the actor; (2) if it does, we must then determine
whether that conduct violates a constitutional right; (3) if so, we must inquire
whether the asserted right was clearly established at the time of the alleged
violation.” Tinker, 429 F.3d at 1326.2
Here, it is uncontroverted that the actions about which Brown complains
were within the scope of Defendants’ discretionary authority. As for the violation
of a constitutional right, we recognized in Kelley v. Hicks that “a prisoner can state
a cause of action under the Eighth Amendment for exposure to ETS by ‘alleging
that [prison officials] have, with deliberate indifference, exposed him to levels of
2
Brown contends that this appeal is not properly before us because it is not an appeal
from a final order, and because we previously vacated a dismissal of Brown’s claims on the basis
of qualified immunity. See Brown v. Smith (“Brown I”), 45 Fed. Appx. 885 (11th Cir. 2002) (per
curiam) (unpublished table decision). These contentions are without merit. We previously
issued an order in this case finding the district court’s January 13, 2006, order to be immediately
appealable, “because the determination that genuine issues of material fact preclude summary
judgment is itself a conclusion of law.” See, e.g., McDaniel v. Woodard, 886 F.2d 311, 313
(11th Cir. 1989). Likewise, Brown I is not necessarily dispositive here because, unlike with a
motion to dismiss, on summary judgment “the plaintiff can no longer rest on the pleadings . . .
and the court looks to the evidence before it (in the light most favorable to the plaintiff) when
conducting the [qualified immunity] inquiry.” Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.
Ct. 834, 840, 133 L. Ed. 2d 773 (1996); see Oladeinde v. City of Birmingham, 230 F.3d 1275,
1289 (11th Cir. 2000) (“[B]ecause the complaint did not contain all of the relevant facts that
were introduced both at summary judgment and at trial, this court’s first opinion affirming the
denial of qualified immunity did not establish the law of the case.”).
3
ETS that pose an unreasonable risk of serious damage to his future health.’” 400
F.3d 1282, 1284 (11th Cir. 2005) (per curiam) (quoting Helling v. McKinney, 509
U.S. 25, 35, 113 S. Ct. 2475, 2481, 125 L. Ed. 2d 22 (1993)). To prove such a
claim, the prisoner must establish certain objective and subjective elements. See
id.; Helling, 509 U.S. at 35, 113 S. Ct. at 2481-82. He must show “that he himself
is being exposed to unreasonably high levels of ETS” (the objective element) and
“that prison authorities demonstrated a ‘deliberate indifference’ to his plight” (the
subjective element). Hicks, 400 F.3d at 1284. The district court erred in denying
qualified immunity, Defendants argue, because Brown’s summary judgment
evidence was insufficient to implicate the objective and subjective components of
an Eighth Amendment claim for ETS exposure. In other words, Defendants
contend that Brown’s allegations, when considered in light of the summary
judgment evidence, were insufficient to assert a constitutional violation. See
Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272(2001) (“If no constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified
immunity.”).
We disagree. The Eighth Amendment violation described in Helling and
Hicks is distinct from the Eighth Amendment violation we described in Brown I.
4
Under Helling, an Eighth Amendment violation occurs when prison officials,
acting with deliberate indifference, expose a prisoner to levels of ETS that pose an
unreasonable risk of serious damage to his future health. 509 U.S. at 35, 113 S. Ct.
at 2481. The Eighth Amendment violation we described in Brown I occurs when
state caretakers intentionally fail to follow a physician’s prescribed course of
treatment for an inmate’s serious medical condition. 45 Fed. Appx. 885. Brown,
we explained, “alleges that [Defendants] intentionally interfered with his
physicians’ request that he be housed in an environment free of ETS by continually
and intentionally placing him in environments where ETS was common.” Id.Brown presented summary judgment evidence supportive of these allegations,
including: (1) an “Inmate Physical Profile” indicating that he should be not be
assigned to any duty “requiring exposure to dust or other allergenic materials[,]
including smoke”; (2) a July 20, 1992, medical memorandum recommending that
Brown “be placed in a room with a non-smoker, if one is available”; (3) a July 30,
2001, memorandum from the medical department to the deputy warden of care and
treatment, stating that one of Brown’s limitations is the need for a “Smoke free
environment indefinitely”; (4) medical records of Brown’s severe asthma problems
and treatment; (5) declarations from prisoners identifying themselves as Brown’s
cellmates and stating that they are smokers; (6) numerous declarations from
5
prisoners stating that Ware State Prison’s “no-smoking inside” policy was
frequently not enforced; (7) copies of grievance proceedings in which Brown
complained that second-hand smoke was aggravating his asthma and making it
difficult for him to breathe; (8) responses by prison officials stating that medical
officials are aware of Brown’s asthma, that Ware State Prison does not allow
smoking in any of its buildings, and that Brown has been assigned to a cell with a
non-smoker; (9) replies by Brown stating that the no-smoking policy is frequently
violated; and (10) letters from Brown to prison officials complaining about
occasions when he was forced to room with a “known violator of the no smoking
indoor[s] policy,” and when another prisoner who smoked was moved into
Brown’s cell. Although Defendants also produced evidence in their favor, such as
declarations about the hundreds of disciplinary actions issued to prisoners for
smoking violations, and a statement that Ware State Prison exceeded air quality
standards set by the American Correctional Association, we must view the
evidence in the light most favorable to Brown, drawing all reasonable inferences in
his favor. See Behrens, 516 U.S. at 309, 116 S. Ct. at 840. In doing so, we agree
with the district court that genuine issues of material fact precluded summary
judgment for Defendants on the issue of whether their alleged conduct violated a
6
constitutional right.3 Likewise, the district court properly rejected Defendants’
claim that they were not on notice that their alleged conduct violated Brown’s
constitutional rights, for in Brown I we described the right at issue as “clearly
established.” 45 Fed. Appx. 885; see, e.g., Young v. City of Augusta, Ga., 59 F.3d
1160, 1169 n.17 (11th Cir. 1995) (“The Eighth Amendment prohibits state
caretakers from intentionally delaying medical care or knowingly interfering with
treatment once prescribed.”). Accordingly, denial of Defendants’ second motion
for summary judgment on the basis of qualified immunity was proper, and we
affirm the decision of the district court.
AFFIRMED.
3
We do not, however, mean to express any opinion on the ultimate merits of Brown’s
claim. See Mitchell v. Forsyth, 472 U.S. 511, 527-28, 105 S. Ct. 2806, 2816, 86 L. Ed. 2d 411(1985) (“[A] claim of immunity is conceptually distinct from the merits of plaintiff’s claim that
his rights have been violated.”); Marsh v. Butler County, Ala., 268 F.3d 1014, 1030 n.8 (11th
Cir. 2001) (same).
7