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Sellers v. Solomon

United States District Court, M.D. North Carolina

May 15, 2018

KELVIN LEANDER SELLERS, Plaintiff,
v.
GEORGE SOLOMON, et. al, Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster, United States Magistrate Judge.

         This matter comes before the Court upon Defendants George Solomon and Michael Davis's ("Defendants") motion for summary judgment. (Docket Entry 19.) This matter is ripe for disposition. For the following reasons, the Court will recommend that Defendants' motion for summary judgment be granted.

         I. BACKGROUND

         Plaintiff, a prisoner of the State of North Carolina, seeks declaratory and injunctive relief and monetary damages pursuant to 42 U.S.C. § 1983 for alleged federal constitutional violations related to exposure to tobacco smoke. (See Docket Entry 1.) In bis complaint, Plaintiff alleges seven incidents in which unnamed Davidson Correctional Center ("Davidson") officers[1] failed to enforce Davidson's no-tobacco policy. All seven incidents involve smoking inside Davidson's D-dorm where Plaintiff is housed. (Id. at 3.) Of these seven incidents, five involve prisoners smoking in the back of the dorm or at the dorm window while an unnamed correctional officer was at the desk. (Id.) Plaintiff contends that on several of those occasions, the officer at the desk was asleep; on one occasion, the officer was doing a puzzle. (Id.) The remaining two incidents involve an officer either witnessing smoking or noticing smoke. One time, an unnamed officer allegedly "Came thru - Guys smoking - she told them not to burn the bed[.]" (Id.) Another time, an unnamed officer "open doors - made comment you all should smoke out doors." (Id.)

         In support of their motion for summary judgment, Defendants have submitted the affidavits of Defendant Davis and Nurse Tara Young as well as numerous exhibits. (Docket Entries 20-3, 20-4.)[2] These materials demonstrate, first, that efforts are made to enforce the no-tobacco policy.

[O]fficers are reminded to perform daily searches, patrol the outside perimeters of the fences and follow up on any intelligence we have of inmates who traffic in tobacco. We request telephone transcripts on inmates we suspect of dealing in tobacco, we strip search inmates returning from visits and pat down inmates as they enter the confines from outside work assignments. From 23 February 2016 through 18 December 2016 officers performed over 105 locker searches just on inmates who live in C&D Dorm

(Id. at 4.) Davidson staff also pursue disciplinary action against inmates who get caught with tobacco or tobacco products. (See Id. at 4, 21-22 ("From 1 September 2015 through 31 December 2015 there were forty-eight (48) B-16 infractions (tobacco) issued and 194 B16 infractions have been issued [through December 15, ] 2016.").) Second, these materials show that Plaintiff has not submitted a sick call request or complained to medical care providers that he suffers from the effects of secondhand smoke. (Docket Entry 20-4 at 2-3, 6-56.)[3]Neither has he mentioned the problem to his case managers. (Docket Entry 20-3 at 30-35.)

         Plaintiffs reply lists thirty-seven additional instances of Davidson officers' non-enforcement of the no-smoking policy, twenty-seven of which actually involve smoking in the dorm. (See generally, Docket Entry 22.) At least four of these descriptions speak, for the first time, to the levels of smoke to which he alleges he was exposed. (Id. at 9.) For example, Plaintiff claims that on March 31, 2017, "Director Flaherty came around to post note on bullaten board about smoke came in inhaling the smoke smell and just begin to cough/gag. Its this bad in here." (Id.) He also describes smoke in the dayroom on October 2, 2016 that was "thick like a cloud". (Id. at 6.) Plaintiffs reply is neither styled as an affidavit nor includes any supporting documentation.

         II. STANDARD OF REVIEW

         Defendants have moved for summary judgment in this matter. (Docket Entry 19.) Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Zabodnick v. Int'l Bus. Macks. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin v. "Frederick Cty. Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting). When making the summary judgment determination, the Court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zabodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson, 477 U.S. at 248-49. Here, Plaintiff is a pro se litigant; thus, his pleadings are to be liberally construed. Graham v. Geneva Enters., Inc., 55 Fed.Appx. 135, 136 (4th Cir. 2003).

         III. DISCUSSION

         As an initial matter, the Court notes that Plaintiff has not provided any evidence, but rather relies on his unsupported allegations. Nevertheless, even taking these allegations in the light most favorable to Plaintiff, he nevertheless has failed to demonstrate the existence of a genuine issue of material fact. Defendants should therefore be entitled to judgment as a matter of law.

         A. Deliberate Indifference

         Plaintiff argues that Defendants have violated his federal constitutional rights because they "failed in upholding the law - no tobacco products allowed." (Docket Entry 1 at 3.) Plaintiff contends that their failure puts him "at serious risk for injury" (id.) from the "effects of inhaling second hand smoke, and the effects it has on [Plaintiffs] health in the months and years to come" (Docket Entry 22 at 1). In other words, Plaintiff alleges that Defendants were deliberately indifferent to the ...


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