Benton v. Higgins

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

JOHNNY AUSTIN BENTON *

*

*

Plaintiff, *

v. * No. 4:22-cv-00047-JJV

*

ERIC S. HIGGINS, *

Sheriff, Pulaski County, et al. *

*

Defendants. *

MEMORANDUM AND ORDER

I. INTRODUCTION

Johnny Austin Green (“Plaintiff”) was in the Pulaski County Regional Detention Center

(“PCRDF”) when he filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. (Doc. 2.)

But he is no longer in custody. (Doc. 65.) In his Second Amended Complaint, Plaintiff says that

from December 2021 to January 2022, defendants Mary Green, Tyler Witham, Hoover Bailey,

Adrian Sanders, Christopher Moseley, Michael Hagerty, Raven Browing, Dedrick Rimmer, Cody

Smith, Jared Lambert, and Tommy Stovall violated his constitutional rights by exposing him to

second-hand or environmental tobacco smoke (“ETS”). (Doc. 15.) Plaintiff brings these claims

against Defendants in their personal capacities, and the only relief he seeks is monetary damages.

(Id.) All other claims and parties have been previously dismissed without prejudice. (Docs. 12,

51.) And the parties have consented to proceed before me. (Doc. 49.)

Defendants have filed a Motion for Summary Judgment arguing they are entitled to

qualified immunity. (Docs. 59-61.) Plaintiff has filed a two-page Response. (Doc. 64.) After

careful consideration and for the following reasons, the Motion for Summary Judgment is

GRANTED, Plaintiff’s claims against the remaining Defendants are dismissed with prejudice, and

this case is CLOSED.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper “if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting that a fact cannot be or

is genuinely disputed must support the assertion by citing to particular parts of materials in the

record, “including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials[.]” Fed. R. Civ. P. 56(c)(1)(A).

When ruling on a motion for summary judgment, the court must view the evidence in a

light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th

Cir. 2002). The nonmoving party may not rely on allegations or denials but must demonstrate the

existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825

(8th Cir. 2007). The nonmoving party’s allegations must be supported by sufficient probative

evidence that would permit a finding in his favor on more than mere speculation, conjecture, or

fantasy. Id. A dispute is genuine if the evidence is such that it could cause a reasonable jury to

return a verdict for either party; a fact is material if its resolution affects the outcome of the case.

Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not

genuine or that are about facts that are not material will not preclude summary judgment. Sitzes

v. City of W. Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

III. FACTS

Although Plaintiff began his confinement in the PCRDF in October of 2021 on new

criminal charges, the parties agree that as of November 2021, he was in custody for a parole

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violation. (Doc. 15, Doc. 61-2.) In his Second Amended Complaint, Plaintiff says that during

scattered days and shifts, from December 16, 2021 until January 31, 2022, Defendants exposed

him to ETS when they used cigarettes or vapes in the “back of A-pod” or “at the back table in A-

pod.1 (Doc. 15 at 5-6.)

The parties agree the PCRDF policy states it is a “smoke and tobacco free” facility and that

the “[u]se of tobacco products is only authorized in the designated outside areas of the facility.”

(Doc. 61-5 at 1.) Defendants say in their sworn affidavits they only smoked in the “outside activity

area at the back of A-Unit, [which] was the designated smoking area.” (Docs. 61-7, 61-8, 61-9,

61-10, 61-11, 61-12, 61-13.) They also deny smoking inside the facility and say Plaintiff could

have walked away from the outside smoking area. (Id.) It is impossible to tell from Plaintiff’s

Second Amended Complaint and Response to the Motion for Summary Judgment if he agrees or

disagrees with these assertions. However, it is undisputed that when Plaintiff arrived at the ADC

in February 2022, he reported that he had smoked a pack of cigarettes a day for fifty-two years.

(Doc. 61-6 at 2.)

IV. ANALYSIS

Qualified immunity protects government officials from § 1983 liability for damages if their

conduct “does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019);

Irvin v. Richardson, 20 F.4th 1199, 1204 (8th Cir. 2021). Whether qualified immunity applies to

this case is a question of law, not fact, for the court to decide. Kelsay v. Ernest, 933 F.3d 975, 981

1 Plaintiff says this happened on Dec. 16, 24, 27, 30; Jan. 6, 8, 9, 11, 22, 23, 24, 26-31. (Doc. 15.)

He also claims that, on one or two occasions, a defendant chewed tobacco in his presence. (Id.)

But Plaintiff does not explain how he was harmed by it.

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(8th Cir. 2019).

Defendants are entitled to qualified immunity if: (1) the evidence, viewed in the light most

favorable to Plaintiff, does not establish a violation of his constitutional rights; or (2) that

constitutional right was not clearly established such that a reasonable official would not have

known his or her actions were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009);

MacKintrush v. Pulaski Cty. Sheriff's Dep’t, 987 F.3d 767, 770 (8th Cir. 2021). Courts may

“exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first.” Pearson 555 U.S. at 236; Mogard v. City of Milbank, 932 F.3d

1184, 1188 (8th Cir. 2019). Defendants argue they are entitled to qualified immunity based on the

first prong of the analysis. And I agree.

Because it is undisputed Plaintiff was in custody for a parole violation at the time of the

alleged constitutional violation, I conclude the Eighth Amendment standard for convicted

prisoners (rather than the Fourteenth Amendment standard for pretrial detainees) applies to his

claim. See, e.g., Flores v. Mesenbourg, Case No. 95-17241, 1997 WL 303277, *1 (9th Cir. June

2, 1997) (the Eighth Amendment standard applies to parole violations because the original

convictions are the authority under which the plaintiffs were confined); Dodd v. Lattimore, No.

4:18-cv-487-JM-BD, 2018 WL 4346686, at *1 (E.D. Ark. Aug. 30, 2018), rec. adopted, 2018 WL

4345255 (applying Eighth Amendment standard because at the time of the alleged constitutional

violation the plaintiff was “a convicted, paroled, and re-incarcerated person”).

To defeat qualified immunity and proceed to trial on his conditions of confinement claim

under the Eighth Amendment, Plaintiff must have evidence that: (1) objectively, the conditions he

endured constituted a substantial risk of serious harm to his health or safety; and (2) subjectively,

the Defendants were deliberately indifferent to the risk of harm posed by the conditions. See

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Vandevender v. Sass, 970 F.3d 972, 975 (8th Cir. 2020); Hamner v. Burls, 937 F.3d 1171, 1178

(8th Cir. 2019). As to tobacco smoke, a prisoner may satisfy the objective element of this test if

there is evidence Defendants exposed him to “unreasonably high levels of ETS” that “pose an

unreasonable risk of serious damage to his future health.” Helling v. McKinney, 509 U.S. 25, 35

(1993) (prisoner, whose cellmate smoked five packs of cigarettes a day, could bring an Eighth

Amendment claim for present and future possible harm to his health).

As previously explained, it is unclear from Plaintiff’s pleadings whether he disagrees with

Defendants’ assertions that they only smoked outside. But even if I presume Plaintiff is saying

Defendants smoked inside where he could not escape the fumes, his claim nevertheless fails

because there is no evidence he was exposed to “unreasonably high levels of ETS” at the PCRDF.

See Larson v. Kempker, 414 F.3d 936, 940 (8th Cir. 2005) (denying preliminary injunctive relief

when a prisoner failed to present evidence he was subjected to unreasonably high levels of ETS or

how such exposure adversely affected his current and/or future health); Henderson v. Lambert,

No. 13-2126, 2014 WL 977674, at *3 (W.D. Ark. Mar. 13, 2014), aff’d, 577 F. App'x 633 (8th

Cir. 2014) (no evidence of exposure to unreasonably high level of ETS when, on two occasions,

guards smoked in a van transporting the plaintiff).

Similarly, there is no evidence Plaintiff’s current or future health was adversely affected

by his limited exposure to ETS at the PCRDF as opposed to his admitted habit of smoking a pack

of cigarettes a day for fifty-two years. See Helling, 509 U.S. at 36 (the objective factor requires

“a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that

such injury to health will actually be caused by exposure to ETS;” and the court must “assess

whether society considers the risk that the prisoner complains of to be so grave that it violates

contemporary standards of decency to expose anyone unwillingly to such a risk”); Schaub v.

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VonWald, 638 F.3d 905, 921 (8th Cir. 2011) (affirming dismissal “where the casual link” between

the defendant’s alleged conduct and the prisoner’s injury “is so tenuous as to justify taking it from

the trier of fact”); Mitchell v. Dakota Cty. Soc. Servs., 959 F.3d 887, 896 (8th Cir. 2020) (“a

plaintiff must show an injury in fact traceable to the defendant’s conduct that will likely be

redressed by a favorable decision”).

In his grievances and Response to the Motion for Summary Judgment, Plaintiff says

Defendants violated his constitutional rights because they smoked but did not allow him or the

other detainees to do so. (Docs. 15, 61-3.) However, Plaintiff did not have a constitutional right

to smoke. Gallagher v. City of Clayton, 699 F.3d 1013, 1018 (8th Cir. 2012); Grass v. Sargent,

903 F.2d 1206, 1206 (8th Cir. 1990); see also Brown v. Boone Cnty., Ark., No.13-3065, 2014 WL

4404973, at *5 (W.D. Ark. July 25, 2014), rec. adopted, 2014 WL 4405433 (W.D. Ark. Sept. 5,

2014) (no viable equal protection claim when jailers were able to use tobacco products while

inmates were not because “inmates are not similarly situated to jail personnel and no fundamental

right is involved”).

According to Plaintiff, unspecified state and federal “guidelines” say a designated

“smoking facility” allows detainees and employees to smoke in a designated area, while a “smoke

free facility” does not allow anyone to smoke within twenty-five feet of the building. (Doc. 64.)

Plaintiff claims Defendants violated these guidelines by wrongfully designating the PCRDF as a

“smoke free” facility, even though they allow employees to smoke. There are several problems

with this assertion. First, Plaintiff has not offered any evidence to support his contention of what

the alleged guidelines provide. Second, prisoners do not have a constitutional right to enforce

compliance with any internal rules or guidelines. See Phillips v. Norris, 320 F.3d 844, 847 (8th

Cir. 2003); Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997). Finally, Plaintiff has not

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produced any evidence demonstrating he was harmed by the allegedly improper designation. For

these reasons, I conclude Defendants are entitled to qualified immunity and summary judgment in

their favor.

V. CONCLUSION

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion for Summary Judgment (Doc. 59) is GRANTED, Plaintiff's

claims against defendants Green, Witham, Bailey, Sanders, Moseley, Hagerty, Browning,

Rimmer, Smith, Lambert, and Stovall are DISMISSED with prejudice, and this case is CLOSED.

2. I certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from

this Memorandum and Order, as well as the accompanying Judgment, would not be taken in good

faith.

DATED this 6th day of February 2023.

Agus _

JOE sy

UNITRD) SVATES MAGISTRATE JUDGE