Powers, Thomas v. Snyder, Donald

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-1961
THOMAS POWERS,
Plaintiff-Appellant,
v.
DONALD SNYDER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-1372—Harold A. Baker, Judge.
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SUBMITTED APRIL 4, 2007—DECIDED MAY 3, 2007
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Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The district judge dismissed this
prisoner’s civil rights suit (42 U.S.C. § 1983) for failure to
state a claim. Except with respect to the following rulings,
we agree with the district judge’s reasoning and conclu-
sions.
Concerning the plaintiff’s claim that he was “forc[ed] to
work in inhumane condition[s] by [being forced] to have
hepatitis shots; knowing and exposing the plaintiff to
conditions where [the warden] knows hepatitis exists,” the
district judge said only that “the plaintiff’s allegations do
2 No. 04-1961
not rise to a constitutional violation.” The problem with
the plaintiff’s claim is not that knowingly exposing a
prisoner to hepatitis or other serious diseases could not
amount to cruel and unusual punishment in violation of
the federal Constitution; it could. Barnes v. Briley, 420 F.3d
673, 675 (7th Cir. 2005); Forbes v. Edgar, 112 F.3d 262, 267
(7th Cir. 1997); Billman v. Indiana Department of Corrections,
56 F.3d 785, 788-89 (7th Cir. 1995); Butler v. Fletcher, 465
F.3d 340, 345 (8th Cir. 2006). The problem is that the
Constitution is not violated by a prison’s forcing a prisoner
who is assigned to work in an unhealthy environment to
be inoculated against the microbes that make it unhealthy.
The prison must be allowed to choose between removing
the prisoner from the unhealthy environment and protect-
ing him from its consequences. Robbins v. Clarke, 946 F.2d
1331, 1333 (8th Cir. 1991) (“although Kitt alleges that he
comes into contact with infected prisoners through his
work as a prison barber, he neither claims that he is denied
any safeguards that barbers regularly employ, nor does he
claim that his exposure to infectious and contagious
disease is more substantial than the exposure of barbers (or
anyone else) to infectious and contagious diseases outside
the prison setting”); Forbes v. Edgar, supra, 112 F.3d at 266-
67; Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001);
Good v. Olk-Long, 71 F.3d 314, 316 (8th Cir. 1995). This is
provided, of course, that the protection is efficacious. But
there is no reason to doubt that it was in this case, given
the plaintiff’s own pleadings. Hepatitis A is the only
form of hepatitis that is transmitted by means other than
an exchange of blood or other bodily fluids, and two safe
and effective vaccinations exist for it. Federal Bureau of
Prisons, Guidelines for the Prevention and Treatment of
Viral Hepatitis (Oct. 2005); Centers for Disease Control,
Hepatitis A Fact Sheet (Oct. 4, 2006), www.cdc.gov/
No. 04-1961 3
ncidod/diseases/hepatitis/a/afact.pdf; Centers for
Disease Control, Vaccines to Prevent Hepatitis A and Hepatitis
B (Sept. 2002), www.cdc.gov/idu/hepatitis/vaccines.htm.
More problematic is the judge’s disposition of the
plaintiff’s claim that he has bone degeneration and arthritis
in one of his hips as a result of a serious injury yet the
defendants refuse to allow him a walking cane (while
forcing him to work at a job that requires walking and
lifting) or a lower berth in a bunk bed. The judge said that
this was simply a “disagreement with a doctor’s treatment
decisions,” which “cannot be the basis for an Eighth
Amendment challenge.” But as all that was before the
judge when he ruled was the plaintiff’s complaint plus the
plaintiff’s correspondence with his doctors, the ruling is
defensible only if these documents establish that the
plaintiff was merely disagreeing with a doctor’s treatment
decisions. The correspondence shows disagreement, all
right, but the judge was mistaken to think that by attach-
ing this correspondence the plaintiff was acknowledging
a mere disagreement. A plaintiff does not, simply by
attaching documents to his complaint, make them a part of
the complaint and therefore a basis for finding that he has
pleaded himself out of court. Simpson v. Nickel, 450 F.3d
303, 306 (7th Cir. 2006); Carroll v. Yates, 362 F.3d 984, 986
(7th Cir. 2004); Guzell v. Hiller, 223 F.3d 518, 519 (7th Cir.
2000); Northern Indiana Gun & Outdoors Shows, Inc. v. City
of South Bend, 163 F.3d 449, 455 (7th Cir. 1998) (“rather
than accepting every word in a unilateral writing by a
defendant and attached by a plaintiff to a complaint as
true, it is necessary to consider why a plaintiff attached
the documents, who authored the documents, and the
reliability of the documents”). The terse responses from
the doctors indicating disagreement with the plaintiff’s
4 No. 04-1961
need for a cane or a lower berth are consistent with their
being willfully indifferent to his suffering. An affidavit
attesting the adequacy of their response to his requests
for treatment might show that there was no triable issue,
but the defendants jumped the gun by moving to dismiss
the complaint before any discovery.
With respect to the plaintiff’s claim that at one prison
he “was housed in a unit with 48 Smoke Cell[s] and 2 Non-
Smoke and a day room full of smoke, [and] that [he] could
not escape the tobacco smoke” and that the wardens of
three other prisons where he was confined refused to
create nonsmoking units or otherwise limit his exposure
to smoke, the district court said—nothing. Now it is by no
means certain that the plaintiff has a meritorious claim. A
prison is not required to provide a completely smoke-free
environment, except for prisoners who have asthma or
some other serious respiratory condition that even a low
level of ambient smoke would aggravate. Alvarado v.
Litscher, 267 F.3d 648, 653 (7th Cir. 2001); Talal v. White,
403 F.3d 423, 427 (6th Cir. 2005); Weaver v. Clark, 45 F.3d
1253, 1256 (8th Cir. 1995); Hunt v. Reynolds, 974 F.2d 734,
736 (6th Cir. 1992). A normal prisoner must prove that he
“is being exposed to unreasonably high levels of ETS [envi-
ronmental tobacco smoke].” Helling v. McKinney, 509 U.S.
25, 35 (1993) (emphasis added). Helling does not say what
level of smoke would be “unreasonably high,” but notes
that the plaintiff had a cellmate who smoked five packs a
day. Id. at 28; see also Steading v. Thompson, 941 F.2d 498,
500 (7th Cir. 1991); Atkinson v. Taylor, 316 F.3d 257, 268 (3d
Cir. 2003).
But although a prisoner who complains that cigarette
smoking amounts to punishment because it is endanger-
ing his health must therefore show that his health is indeed
No. 04-1961 5
endangered, Henderson v. Sheahan, 196 F.3d 839, 846, 852
(7th Cir. 1999); Oliver v. Dean, 77 F.3d 156, 160 (7th Cir.
1996), there are other modes of inflicting cruel and unusual
punishment besides ones that endanger a person’s health,
such as handcuffing a prisoner for hours to a hitching post,
Hope v. Pelzer, 536 U.S. 730, 737-30 (2002), or conducting
a strip search intended to humiliate the prisoner, Calhoun
v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003), or even deny-
ing a prisoner all opportunity to exercise. Delaney v.
DeTella, 256 F.3d 679, 683-84 (7th Cir. 2001). “Many
things—beating with a rubber truncheon, water torture,
electric shock, incessant noise, reruns of ‘Space 1999’—may
cause agony as they occur yet leave no enduring injury.
The state is not free to inflict such pains without cause just
so long as it is careful to leave no marks.” Williams v. Boles,
841 F.2d 181, 183 (7th Cir. 1988). So maybe there’s a level
of ambient tobacco smoke that, whether or not it creates a
serious health hazard, inflicts acute discomfort amounting,
especially if protracted, to punishment. Whether the
plaintiff’s claim rises to this level or instead amounts
just to a complaint about something more akin to an
annoyance than to oppression, see, e.g., Tesch v. County of
Green Lake, 157 F.3d 465, 476 (7th Cir. 1998); Lunsford v.
Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994), is impossible to
determine from the complaint. The judge should have
directed the plaintiff to explain his claim in greater detail.
See Pratt v. Tarr, 464 F.3d 730, 733 (7th Cir. 2006); Alston v.
Parker, 363 F.3d 229, 234 (3d Cir. 2004).
Also unclear from the complaint is whether the plaintiff
is charging the defendants with deliberate indifference to
his welfare in their failing to respond to his concerns
about tobacco smoke. For if not—if they were merely
careless in failing to correct the problem—then they cannot
6 No. 04-1961
be thought to have been punishing him, and so his claim,
founded of course on the Eighth Amendment, would fail.
Farmer v. Brennan, 511 U.S. 835, 835 (1994); Scarver v.
Litscher, 434 F.3d 972, 975 (7th Cir. 2006); Talal v. White,
supra, 402 F.3d at 427-28; Atkinson v. Taylor, supra, 316 F.3d
at 269. But bearing in mind that he had no lawyer, we
find in the complaint enough intimations of deliberate
indifference to bar dismissal at this stage. The complaint
alleges one warden’s “deliberate intent” to deny the
plaintiff a smoke-free cell despite his “mental anguish and
concern for future harm”; that “Captain Dusian . . . de-
liberately violated the plaintiff’s 8th Amendment by not
giving the plaintiff his non-smoke cell for 48 days . . . .
[T]he plaintiff suffered with cellmates that were heavy
smokers”; and that another warden violated the plaintiff’s
rights by “not having a non-smoke unit, that the plaintiff
has been subject to heavy smokers since his arrival . . . and
still has not been put in a non-smoke cell, that [the
warden is] deliberately violating the plaintiff’s rights.”
In a separate part of the complaint, the plaintiff alleges
that the warden restricted visits from the plaintiff’s wife
and friend “out of abuse of power which stems from an
incident in 1995 between the plaintiff and [the warden].”
The incident is not specified. The allegation is unclear, to
say the least, but since the plaintiff has no lawyer, the
judge should have directed the plaintiff to explain the
claim. Or if the judge was entitled to dismiss it—for it is
even vaguer than the smoking claim—he should have done
so with leave to replead, rather than dismissing it, as he
did, along with the rest of the complaint, with prejudice
(and adding that the suit would count as a “strike,”
limiting the plaintiff’s right to bring subsequent suits). The
plaintiff explains in his brief in this court that the claim is
No. 04-1961 7
retaliation—the incident that precipitated the restriction of
visits to him was his filing grievances against the prison.
Such retaliation violates a prisoner’s right, founded on the
First Amendment, to petition government for the redress of
grievances. Simpson v. Nickel, supra, 450 F.3d at 305; Pearson
v. Welborn, 471 F.3d 732, 741 (7th Cir. 2006); Boxer X v.
Harris, 437 F.3d 1107, 1112 (11th Cir. 2006); Friedl v. City of
New York, 210 F.3d 79, 85 (2d Cir. 2000). If the plaintiff
can prove it, he has a good claim. He is entitled to try to
prove it.
The judgment is vacated and the matter remanded to the
district court with respect to the arthritis, smoking, and
retaliation claims, but is otherwise affirmed.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-07