United States District Court, E.D. Missouri, Northern Division
DANIEL A. HUMAN, Plaintiff,
M. LOWRANCE, et al, Defendants,
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
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
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
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).
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.
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.
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
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.
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.
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.
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.
filed a medical claim complaining of his allergy to ETS. The
doctor prescribed a medication to help him with the symptoms.