Opinion
Case No. 1:19-cv-275 Erie
04-16-2020
DOUGLAS KESSLER, Plaintiff v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS and MR. OBERLANDER, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS [ECF No. 10] MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss [ECF No. 10] be granted. II. Report
A. Background
Plaintiff Douglas Kessler, acting pro se, initiated this civil rights action in the Court of Common Pleas of Forest County against the Pennsylvania Department of Corrections (DOC) and Derek Oberlander, the Superintendent of the State Correctional Institution at Forest (SCI-Forest). ECF No. 1. Defendants properly removed the action to this Court pursuant to 28 U.S.C. § 1441(a). In his complaint, Plaintiff, a prisoner currently incarcerated at SCI-Forest, contends that prison officials violated his constitutional rights by banning the sale of tobacco products at the prison's commissary. Plaintiff asserts the following causes of action: (1) unlawful deprivation of his "U.S. Constitutional right to be permitted to continue purchasing tobacco products" and "the right to having possession of such products for consumption purposes"; (2) violation of "Article I Sec. 8 ¶ 3 that's protected by the Grandfather Clause of a legalized product purchasing and consuming it"; (3) cruel and unusual punishment, in violation of the Eighth Amendment; and (4) violation of his right to equal protection "as a smoker elsewhere to continue smoking if [he] desires to do so, which he does." ECF No. 1-2 at 5-6.
The Court has jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. §§ 1331 and 1343. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
The factual allegations in the complaint are sparse. Plaintiff alleges that on March 18, 2019, DOC officials issued a notice to all Pennsylvania inmates that tobacco sales would no longer be permitted in Pennsylvania's prisons after June 1, 2019, and that tobacco products would be considered contraband after August 1, 2019. ECF No. 1-2 at 4-5. Inmates possessing tobacco products after that date would be issued misconducts. Id. at 5. In lieu of tobacco products, the prison commissary would offer electronic cigarettes and nicotine patches for purchase, albeit at a higher price. Id. Plaintiff avers that neither of these products "will do to satisfy [his] need for nicotine within an actual cigarette." Id. at 7.
Defendants filed a motion to dismiss the complaint on November 5, 2019. ECF No. 10. Plaintiff responded on November 21, 2019. ECF No. 16. For the following reasons, Defendants' motion should be granted.
B. Standards of Review
1. Pro se Litigants
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Dep't of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
2. Motion to dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
C. Analysis
As noted above, Plaintiff is challenging the DOC's decision to cease tobacco sales and penalize tobacco possession in Pennsylvania's prisons. In addition to generally asserting that he has a constitutional right to purchase and smoke cigarettes, Plaintiff maintains that the DOC's tobacco policy violates his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to equal protection. As discussed below, each of these claims is frivolous.
1. Constitutional right to smoke
Plaintiff first contends that he has a constitutionally protected right to smoke. It is well-settled, however, that "there is 'no constitutional right to smoke in a jail or prison.'" House of Corr. Nock Representatives Comm. v. Creamer, 1998 WL 242663, at *1 (E.D. Pa. Apr. 30, 1998) (quoting Reynolds v. Bucks, 833 F.Supp. 518, 519 (E.D.Pa.1993)). Indeed, "an avalanche of cases in . . . federal courts have rejected constitutional challenges to smoking restrictions in prisons." Thiel v. Nelson, 422 F.Supp.2d 1024, 1029-30 (W.D. Wis. Mar. 24, 2006) (collecting cases). As noted by the Court of Appeals for the Seventh Circuit, given that prison officials have a constitutional duty to protect inmates from high levels of ambient cigarette smoke, "a prison could hardly be thought to be violating the Constitution by restricting smoking." Beauchamp v. Sullivan, 21 F.3d 789, 790-91 (7th Cir.1994) (citing Helling v. McKinney, 509 U.S. 25 (1993)). Accordingly, Plaintiff's challenge to the DOC's tobacco ban on general constitutional principles should be dismissed as frivolous.
2. Cruel and unusual punishment
Plaintiff next contends that the tobacco ban amounts to cruel and unusual punishment in violation of the Eighth Amendment. Although the Eighth Amendment's prohibition of cruel and unusual punishment protects against "unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986), it guarantees an inmate only the "minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To state an Eighth Amendment claim, Plaintiff must allege facts showing that "objectively he suffered a sufficiently serious deprivation" and "subjectively the defendant had a culpable state of mind in allowing the deprivation to occur." Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).
As a general matter, every court that has "considered whether bans on smoking in prisons violate the Eighth Amendment . . . ha[s] concluded unanimously that generally they do not." Creamer, 1998 WL 242663, at *2 (collecting cases). See also Austin v. Lehman, 893 F.Supp. 448 (E.D. Pa.1995) ("[C]ourts routinely insulate from Eighth Amendment attack both partial and total restrictions on an activity as marginally related to prisoners' basic well-being as cigarette smoking."). An exception may exist where "the sudden withdrawal of an addictive substance like tobacco might be employed as a form of torture by police or guards," Beauchamp, 21 F.3d at 790, or where prison medical officials act with deliberate indifference to serious medical needs stemming from sudden nicotine withdrawal, Estelk v. Gamble, 429 U.S. 97 (1976). Here, although Plaintiff makes a passing reference in his reply brief to "the endurance of nicotine withdraw systems," ECF No. 16 at 1, no such allegations appear anywhere in his complaint. Nor has Plaintiff pleaded any facts suggesting that Defendants "had a culpable state of mind" with respect to any discomfort caused by the tobacco ban. Wilson, 501 U.S. at 298-99. In any event, courts have widely held that such symptoms, unless manifested as a serious medical need, do not ordinarily amount to cruel and unusual punishment. See, e.g., Beauchamp, 21 F.3d at 790 (characterizing it as "[s]o clear" that tobacco bans do not violate the Eighth Amendment "that we have no hesitation in pronouncing this suit frivolous"); Austin, 893 F.Supp. at 452 ("[A]ny nicotine-related suffering endured by Plaintiff was reasonably related to a legitimate penological objective and thus was not caused by the 'wanton and unnecessary infliction of pain.'"); Reynolds v. Bucks, 833 F.Supp. 518, 520 (E.D.Pa.1993) (pain of nicotine withdrawal attendant on smoking ban "is neither unnecessary nor wanton"). For each of these reasons, Plaintiff's allegation that the tobacco ban generally amounts to cruel and unusual punishment must be dismissed.
Such allegations are also undermined by Plaintiff's admission that the prison commissary sells alternative nicotine products such as electronic cigarettes and nicotine patches. --------
3. Equal protection
Finally, Plaintiff contends that his equal protection rights have been violated in some fashion by the tobacco ban. To state an equal protection claim, Plaintiff must allege (1) membership in a suspect class, (2) deprivation of a fundamental right, or (3) enforcement of state laws or regulations in an arbitrary or invidiously discriminatory manner. State action that does not implicate either a fundamental right or a suspect classification will pass constitutional muster under the Equal Protection Clause if it bears a rational relation to a legitimate state interest. See Heller v. Doe, 509 U.S. 312, 319 (1993) ("[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity.").
"[B]ecause smoking is not a fundamental right and prisoners are not a suspect class," Thiel, 422 F.Supp.2d at 1030, the critical inquiry is whether the smoking ban is rationally related to a legitimate penological interest. Creamer, 1998 WL 242663, at *2 (applying rational-basis review to a prison tobacco ban). Courts have repeatedly held that banning tobacco use in prisons bears a rational relationship to several legitimate penological purposes including, among other things, maintaining a healthier and safer prison environment, eliminating fire safety hazards, reducing inmate complaints and lawsuits related to second-hand tobacco smoke, and complying with state clean air laws. Id. See also Thiel, 422 F.Supp.2d at 1030 ("Courts considering equal protection challenges to smoking restrictions have concluded that the restrictions bear a reasonable relation to a variety of legitimate state interests, such as (1) improving the health and safety of inmates, for which the state is largely responsible; (2) reducing fire hazards; (3) maintaining clean and sanitary conditions; and (4) reducing complaints and the threat of litigation from inmates who do not smoke.") (collecting cases); Lafaele v. Schwarzenegger, 2008 WL 4532512, at *3 (E.D. Cal. Oct. 8, 2008) ("It is well established that protecting inmates and staff by providing a clean air environment and safe conditions of confinement are legitimate governmental objectives.") (citing Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998)). For these reasons, Plaintiff's equal protection claim fails.
4. Leave to amend
The Court of Appeals for the Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this instance, with one exception, it is recommended that leave to amend be denied as futile because well-established caselaw demonstrates that each of Plaintiff's claims, as pleaded, is legally frivolous.
That said, the Court should permit Plaintiff to amend his complaint, if he so desires, in one respect: to attempt to state a claim for deliberate indifference to a serious medical need based on untreated nicotine withdrawal symptoms. Plaintiff is reminded that an amended complaint "must be complete in all respects. It is a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed." Williams v. Ferdarko, 2018 WL 3653272, at *1 n. 1 (W.D. Pa. Aug. 1, 2018) (quoting Young v. Keohane, 809 F.Supp. 1185, 1189 (M.D. Pa. 1992)). Plaintiff should be cautioned that failure to file an amended complaint within a reasonable time will result in a final order dismissing this action with prejudice. III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion to dismiss [ECF No. 10] be granted. Plaintiff's constitutional claims based on the general banning of tobacco in prisons should be dismissed without leave to amend. However, Plaintiff should be permitted an opportunity to file an amended complaint alleging deliberate indifference to a serious medical need, if factually warranted. Such a claim must be properly exhausted and should typically be directed at the specific individuals who failed to provide necessary medical treatment. IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: April 16, 2020