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Human v. M. Lowrance

United States District Court, E.D. Missouri, Northern Division

January 11, 2017

DANIEL A. HUMAN, Plaintiff,
M. LOWRANCE, et al, Defendants,



         This matter is before the Court on defendants' motion to dismiss or, alternatively, motion for summary judgment. Defendants argue that the complaint should be dismissed because plaintiff failed to exhaust his claims and because his Eighth Amendment claims fail to state a plausible claim for relief. The motion is granted, and this action is dismissed.


         To state a claim under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading need not include “detailed factual allegations, ” but it is not sufficient to tender “naked assertion[s]” that are “devoid of further factual enhancement.” Id. (internal quotation marks omitted). A complaint must do more than allege “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id.

         When reviewing a motion for summary judgment, the Court must construe the record in the light most favorable to the non-moving party. The moving party bears the burden of establishing the absence of any issue of material fact and its entitlement to judgment as a matter of law. The burden then shifts to the non-moving party, who may not rest on the pleadings, but must provide specific facts showing that issues of material fact exist for trial. Fed.R.Civ.P. 56; Heisler v. Metropolitan Council, 339 F.3d 622, 626 (8th Cir. 2003).


         Plaintiff brings this action under 42 U.S.C. § 1983 for violations of the First and Eighth Amendments. He suffers from an allergy to second hand smoke, or environmental tobacco smoke (“ETS”). He is incarcerated at the Northeast Correctional Center (“NECC”), where tobacco is made available and inmates are permitted to smoke in their cells. Additionally, prison staff frequently smoke within twenty-five feet of the building entrances. He suffers from medical distress as a result of the smoking.

         On October 1, 2014, plaintiff filed an inmate resolution request (“IRR”). In it, he stated, “I am subjected to 2nd hand smoke in violation of DOC Policy and state law. There is a constant stream of smoke in the wing at almost all times. . . . [M]ost of the staff also smoke within 25´ of the bldgs. in violation of state law.” He requested the “immediate cessation of all smoking in and within 25´ of any bldg.” He did not state that he had an allergy to ETS. Defs.' Ex. A. to Mot. to Dismiss.

         On October 24, 2014, defendant M. Lowrance discussed the IRR with plaintiff. Plaintiff requested that she visit his housing unit to see the conditions for herself. After their meeting, Lowrance came to plaintiff's housing unit and announced to the offenders there that plaintiff had filed a grievance about their smoking habits. Plaintiff claims she did so in retaliation for his IRR and so that inmates would punish him for being a “snitch.” Lowrance later returned to plaintiff's housing unit to further discuss his complaint. She responded, “it is almost impossible to stop all addicted smokers from smoking, and that officers doing [sic] their best to enforce the smoking policy.” After their discussion, plaintiff checked the box, “IRR RESOLVED BY DISCUSSION/WITHDRAWN.” Defs.' Ex. A. to Mot. to Dismiss. He did not file a formal grievance or grievance appeal.

         Later that day, some inmates formed a plan to attack plaintiff when he went to the chow hall. Some other inmates intervened, however, and the attack did not take place.

         A few weeks later, plaintiff requested to be moved to a cell with a nonsmoker. However, defendant T. Wood, who is a functional unit manager, moved plaintiff to a cell with two smokers. Just before moving plaintiff, Wood told plaintiff's cell mate that plaintiff had filed an IRR about inmates smoking in their cells, which plaintiff believes was intended to cause other inmates to harm him.

         On June 11, 2015, plaintiff filed another IRR, claiming that he suffered from an allergy to ETS. He stated that he had been promised by Wood that the smoking would be stopped but that nothing was done. He complained that smoking was occurring everywhere in the housing unit as well as the cells. He also complained that the smoking continued in spite of Lowrance's assurance that it would stop. The IRR was denied as duplicative. Def. Ex. B. to Mot. to Dismiss. Plaintiff's grievance and grievance appeal were denied by defendants Hurley and Earls, respectively. Pl.'s Ex. 6 and 7 to Compl.

         Plaintiff sent letters to defendants Hurley, Godert, and Lombardi complaining of the conditions and his allergy to ETS. They did not provide him with a remedy.

         Plaintiff filed a medical claim complaining of his allergy to ETS. The doctor prescribed a medication to help him with the symptoms. ...

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