Murray v. Wetzel

FORIN T HTHE EM UIDNDITLEED D SISTTARTIECST D OIFS TPREINCNTS CYOLUVRATN IA

BRAY JIBRIL MURRAY, :

Plaintiff, : 1:17-cv-1637

:

v. : Hon. John E. Jones III

:

SECRETARY JOHN E WETZEL, :

et al., :

Defendants. :

MEMORANDUM

March 29, 2021

Plaintiff, Bray Jibril Murray (“Murray”), a state inmate in the custody of the

Pennsylvania Department of Corrections (“DOC”), formerly housed at the State

Correctional Institution at Dallas (“SCI-Dallas”), filed the instant action pursuant

to 42 U.S.C. § 1983, on September 12, 2017, alleging that, in exposing him to

secondhand tobacco smoke and failing to adequately treat him for such exposure,

Defendants violated his Eighth Amendment rights. Murray’s supplemental

complaint (Doc. 79) filed on August 30, 2019, is the governing complaint in this

matter.

Ripe for disposition are motions for summary judgment filed by Defendant

Loretta DeBoer, CNRP (“DeBoer”) (Doc. 133) and Secretary John E.Wetzel

(“Wetzel”), Superintendent Lawrence Mahally (“ Mahally”), Deputy

Superintendent Zakarauska (“Zakarauska”), Deputy Demming (“Demming”),

U/M/ Bohinski (“Bohinski”), Major White (“White”), Goyne, George Miller

(“Miller”), and James Marsico (“Marsico”) (Doc. 135), collectively referred to as

the DOC Defendants. For the reasons set forth below, Defendants’ motions will be

granted.

I. STANDARD OF REVIEW

Summary judgment “should be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340

(3d Cir. 1990). “[T]his standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990).

A disputed fact is “material” if proof of its existence or nonexistence would affect

the outcome of the case under applicable substantive law. Id.; Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is

“genuine” if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d

Cir. 1991).

The party moving for summary judgment bears the burden of showing the

absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d

Cir. 1996). Although the moving party must establish an absence of a genuine

issue of material fact, it need not “support its motion with affidavits or other

similar materials negating the opponent's claim.” Celotex, 477 U.S. 317, 323

(1986). It can meet its burden by “pointing out ... that there is an absence of

evidence to support the nonmoving party’s claims.” Id. at 325.

Once such a showing has been made, the non-moving party must go beyond

the pleadings with affidavits, depositions, answers to interrogatories or the like in

order to demonstrate specific material facts which give rise to a genuine issue.

FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts”);

Wooler v. Citizens Bank, 274 F. App’x 177, 179 (3d Cir. 2008). The party

opposing the motion must produce evidence to show the existence of every

element essential to its case, which it bears the burden of proving at trial, because

“a complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at

323; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he

non-moving party ‘may not rely merely on allegations or denials in its own

pleadings; rather, its response must . . . set out specific facts showing a genuine

issue for trial.’” Picozzi v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011)

(quoting FED. R. CIV. P. 56(e)(2)). “Inferences should be drawn in the light most

favorable to the non-moving party, and where the non-moving party’s evidence

contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple

BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

If the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at

322. The adverse party must raise “more than a mere scintilla of evidence in its

favor” and cannot survive by relying on unsupported assertions, conclusory

allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458,

460 (3d Cir. 1989). The mere existence of some evidence in support of the non-

movant will not be adequate to support a denial of a motion for summary

judgment; there must be enough evidence to enable a jury to reasonably find for

the non-movant on that issue. Anderson, 477 U.S. at 249–50.

II. STATEMENT OF MATERIAL FACTS

On June 17, 2016, the DOC implemented Clean Indoor Air Act Policy 1.1.7,

superseding all prior policies providing a smoke free environment consistent with

Senate Bill No. 246 of 2007, Pennsylvania Clean Indoor Air Act. (Doc. 140-1, p.

6). The policy provided “[e]xcept at tobacco free facilities, smoking may be

permitted only at designated outdoor locations. Proper disposal receptacles must be

used.” (Id. at p. 11). It also provided under the heading “Non-Compliance,” that:

“1. Inmate violations will be addressed in accordance with Department policy DC-

ADM 801, ‘Inmate Discipline.’ Staff violations will be addressed in accordance

with Department policy 4.1.1, ‘Human Resources and Labor Relations.’ 2. In

addition to the disciplinary action referenced in Subsection B.1. above, staff and

inmates who do not comply with the smoking ban may also be subject to the

administrative and/or criminal penalties provided in the Clean Indoor Air Act.”

(Id.).

On September 30, 2016, Murray submitted a DC135A Inmate Request to

Defendant Bohinski complaining of the high level of tobacco smoke created in F-

Unit by staff and inmates smoking “whenever and wherever” in the unit. (Doc.

134, ¶ 8; Doc. 157, ¶ 8). He believed the traditional cell doors constructed with

1 DeBoer and the DOC Defendants filed a joint Statement of Facts. (Doc. 134).

bars in F-Unit did nothing to stop the smoke from entering his cell and requested a

transfer to G-Unit, which had solid cell doors. (Id.; Id.).

On October 6, 2016, he submitted a second DC135A Inmate Request

addressed to Defendant White, complaining of the excessive smoking in F-Unit,

referring to his prior request directed to Bohinksi and Bohinski’s response

explaining to Murray that G-Unit was primarily a double cell housing unit.

Murray’s cell status is a Z code (single-cell). (Doc. 137-7, p. 19). He also warned

that if the issue was not resolved he would file a grievance. (Doc. 134, ¶ 9; Doc.

157, ¶ 9).

On October 15, 2016, Murray submitted two separate identical DC135A

Inmate Requests addressed to Defendants Zakarauskas and Demming, stating that

he has been exposed to tobacco smoke day and night due to inmates and staff

freely using smoking tobacco everywhere in F-Unit and asking if there existed a

housing unit at SCI-Dallas where inmates and staff were prohibited from

purchasing, possessing, or using tobacco products. (Doc. 134, ¶ 10; Doc. 157, ¶

10; Doc. 139-5, pp. 3-4).

Murray submitted another DC135A Inmate Request on January 5, 2017,

addressed to Defendant Goyne, “complaining about the extremely high levels of

second hand smoke” and detailing his efforts to informally resolve the matter and

the staffs’ failure to respond to his requests. (Id. at 11; Id. at 11; Id. at p. 5).

On February 1, 2017, Murray wrote a letter to the Representatives of “the

Pennsylvania House of General Assembly,” with a copy sent to Defendant Wetzel,

informing them that the use of tobacco products in the housing units at SCI-Dallas

was in violation of the Clean Indoor Act, and requesting that smoking be

prohibited at SCI-Dallas until the prison made proper and adequate renovations to

the housing units to protect non-smoking inmates from exposure to secondhand

smoke. (Id. at 12; Id. at 12; Doc. 139-9). In responding on behalf of Defendant

Wetzel, on March 23, 2017, Jennifer Pawling, Staff Assistant of the Eastern

Region of the DOC stated that:

The Clean Indoor Air Act, DOC policy 1.1.7, which you referenced,

does prohibit smoking in Departmental buildings. Smoking, with the

exception of tobacco free facilities, is permitted at designated outdoor

locations. Inmate violations should be disciplinarily addressed

according to the DC-ADM 801, and staff violations are to be addressed

in accordance with the DOC’s Human Resources and Labor Relations

policy. There are also administrative and criminal penalties associated

with the Act.

. . .

By copy of this response, SCI Dallas Administrative staff will be

apprised of your concerns. In addition, the DOC’s Operations Bureau,

which is primarily responsible for this area of policy, is also being

included on this response.

(Id. at 13; Id. at 13; Doc. 139-10).

On March 3, 2017, Murray filed Grievance Number 668355, with the

heading “Clean Indoor Air Act Violation.” (Id. at 14a; Id. at 14; Doc. 139-4, p. 9).

He states that since arriving at SCI-Dallas on September 22, 2017, he has been

exposed to “extraordinarily high levels of Environmental Tobacco Smoke

(“ETS”)” which is placing his future health at significant risk.” (Id.; Id.; Id.). He

complains about the antiquated facility, the use of iron bar cell doors as opposed to

solid cell doors, the lack of a camera system, and the fact that tobacco products are

sold in the commissary. He requested monetary compensation, injunctive relief,

and punitive damages.

The initial response dated April 3, 2017, states:

If you are experiencing any health issues, I strongly recommend you

sign up for sick call.

All buildings at SCI-Dallas have signage stating this is a no smoking

building. Staff have been instructed on the policy and the law about the

clean indoor act, which includes but is not limited to issuing a

misconduct if deemed necessary.

Pennsylvania Correctional Industries is in charge of the commissary list

and available products for purchase, with that being said the institution

does not have the ability to not sell those products.

Your request[s] [for] 1,000.00 a day, preliminary injunction,

designating G-unit as non-smoking and punitive damage[s] of 5,000.00

a day are rejected.

(Doc. 139-4, p. 11).

Murray appealed. (Id. at 12). Defendant Mahally found that the grievance

officer adequately addressed the issue. (Id. at 13). He also recommended that

Murray sign up for sick call if he was experiencing any health issues. (Id.).

Murray pursued the grievance to the final level, the Secretary’s Office of Inmate

Grievances and Appeals (“SOIGA”), stating in part that: “Records will show, that

grievant have grieved this secondhand smoke issue before while housed at other

SCI-facilities, and he have a deep-seated psychological fear and anxiety about

exposure to secondhand smoke; and hence believes he should never have been sent

to a SCI-facility (such as Dallas), where the level of ETS is extraordinarily high,

and places grievant and all non-smoking inmates future health at grave risk.” (Id.

at 14). The SOIGA upheld the earlier responses. (Doc. 134, ¶ 14(f); Doc. 157, ¶

14).

Murray was admitted to the infirmary on May 24, 2017, for injuries,

including a stab wound and a human bite, sustained during an altercation with

another inmate. (Doc. 134, ¶ 15; Doc. 157, ¶ 15). He had no respiratory

complaints, his lungs were clear, and he denied experiencing chest pain or

shortness of breath. He did not raise any concerns related to secondhand smoke on

the housing blocks. (Id.; Id.). On May 25, 2017, while in the infirmary, he had a

chest X-ray secondary to complaints of feeling lightheaded or faint, which revealed

no evidence of lung disease. (Id. at 16; Id. at 16).

Murray was seen by Defendant DeBoer, in the Restricted Housing Unit

(“RHU”) on May 30, 2017, for removal of staples from the wound he suffered

during the inmate altercation and to discuss HIV testing because of the human bite

he sustained. (Id. at 17; Id. at 17). The staples were removed without incident and

Murray agreed to the HIV testing. He did not raise concerns of secondhand smoke

or any impact it may have been having on his health. (Id.; Id.). Nor did voice any

complaints to DeBoer regarding secondhand smoke or concerns pertaining to his

respiratory health when she returned to the RHU on June 22, 2017, to advise him

of his HIV test results. (Id. at 18; Id. at 18).

The following day, June 23, 2017, Murray was seen by Dr. Guy Gustitus for

an Annual Preventative/Wellness visit. (Id. at 19; Id. at 19). Murray had no health

complaints. (Id.; Id.).

Over a year passed with no medical encounters. (Id. at 20: Id. at 20). He

had his Annual Preventative/Wellness visit on August 2, 2018, at which time he

informed Defendant DeBoer that he was healthy and had no complaints. (Id. at 20;

Id. at 20). The visit revealed elevated blood pressure. (Id.; Id.). All other vital

signs, including his respiratory rate, were normal. (Id.; Id.).

He was next seen in the medical department on November 16, 2018, to

discuss issues related to his diet. He did not raise any health concerns related to

secondhand smoke. (Doc. 134, ¶ 22).

On February 4, 2019, Murray notified the medical department that he was

concerned about “pervasive levels of environmental tobacco smoke (ETS).”

(Doc. 134, ¶ 23; Doc. 157, ¶ 23). On his sick call slip, he wrote: “For several

weeks, I have been experiencing some very serious respiratory problems in my

sinuses, [headaches], burning and watery eyes, heavy phlegm or mucous in chest

and sinus area. Burning sensation in throat and nostrils.” (Id. at 23; Id. at 23). He

did not present at sick call to be assessed. (Id.; Id.).

On February 6, 2019, he submitted another sick call slip, stating: “As a

result of pervasive levels of environmental tobacco smoke (ETS) in I unit for

several weeks, I have been experiencing weird but serious respiratory problems

such as heavy congestion of mucous or phlegm in my chest and sinus areas as well

as [headaches], burning sensation in my sinuses, throat and eyes.” (Id. at 24; Id. at

24). He was requesting a mask to filter out the smoke. (Id.; Id.).

At sick call, Defendant DeBoer examined him and noted that his ears were

clear without reddening, his nose was not swollen but contained a small amount of

yellow mucous, and his lungs revealed no wheezing, rales, or rhonchi. (Id.; Id.).

DeBoer asked him to perform a peak flow test, but noted that he exhibited poor

effort despite repeated instructions. (Id.; Id.). His respiration rate and oxygen

levels were normal. Based upon her findings, she diagnosed him with allergic

rhinitis and offered to prescribe him Zyrtec. The medical progress notes reveal

that he declined the Zyrtec stating: “What good will that do? I don’t have allergies.

I want a mask. That would help tremendously.” (Doc. 139-2, p. 27). Defendant

DeBoer advised him that his symptoms can be attributed to an irritative process

from smoke exposure triggering mucous production as well as other symptoms.

(Id. at 27-28). He responded: “NO that [sic] not it. I want a mask. I want them not

to smoke on the block.” (Id. at 28). DeBoer advised him that she “d[id] not have

any jurisdiction in preventing other inmates from smoking as well as directing COs

to stop smoking on the block” and that “medical does not issue masks for inmates

to use in their cell.” (Id.). When he questioned why, DeBoer informed him that the

medical department “is not allowed to issue masks for smoke filtration purposes.”

(Id.). She again explained the purpose of the Zyrtec and asked if he wanted the

prescription. He responded, “Well I am not sure.” (Id.). When she advised him

that a decision must be made in the interest of time, he stated: “Well forget it. You

did nothing for me.” (Id.).

In her affidavit, DeBoer states “because I am not an employee of the [DOC],

I have no authority or ability to enforce the [DOC’s] “No Smoking Policy.” (Doc.

139-11, ¶ 3). In the event that a patient presents to the medical department with

symptoms believed to be caused by smoking or secondhand smoke, she is only

qualified to treat the symptoms and/or the underlying disease of the patient. (Id. at

¶ 4). Pursuant to DOC regulations in effect at the time, and prior to COVID-19,

inmates were not permitted to wear face coverings in the housing units, including

medical masks. (Id. at ¶ 6). They could only wear medical masks while housed in

the infirmary and only if they suffered from an infectious respiratory disease. (Id.).

The following day, Murray filed Grievance Number 786403, stating that:

[O]n February 6, 2019, I attended sick call, and was seen by a Nurse or

P/A named Loretta, regarding second hand-related respiratory

problems such as: burning throat, nose and eyes; headaches; heavy

mucus build-up in sinus and chest areas. After conducting a battery of

simple tests, P/A Loretta diagnoses my medical problem as ETS-related

allergies; and recommends allergy medication. I vigorously disagreed

with the P/A’s recommended treatment of my ETS-related medical

problem, and requested to be examined by a specialist in excessive

ETS-exposure, and also to be provided with duck-bill or a painter’s

brerqeuatehsitns gf omr adsukc, kt-ob wille mara isnk t, heet ch.,o buesicnagm uen vite royn ulyp.s e Tt hwei tPh/ Am ed,e gnaievde mmye

an ultimatum of accepting the allergy medication (for ETS-related

medical problem), and angrily dismissed me from the triage when I

declined allergy medicine. Relief sought here: I want to be examined

by a ETS or indoor pollutant medical specialist, and also be provided

with a duck-bill or painter’s mask while housed in I-unit.

(Doc. 134, ¶ 25; Doc. 157, ¶ 25).

On February 26, 2019, Corrections Healthcare Administrator, Lea Martin

(“CHCA Martin”), responded stating as follows:

As you state, on February 6, 2019, you were seen in sick call. You

complained about second hand smoke and requested a mask be

provided from Medical as a solution to filter out the smoke. After an

assessment was performed, you were diagnosed with allergic rhinitis.

You were given the option to have Zyrtec prescribed, in which you

refused. Furthermore, you were infirmed that Medical is not authorized

to distribute masks to inmates. The practitioner was correct in not

providing you with a mask, and you were given a potential resolution

to help with your medical symptoms when you were offered

medication. The Medical Department cannot authorize a “smoke free

block,” as all housing units are deemed smoke free. If a specialist was

warranted, you would have been referred to one. There has been no

wrongdoing by medical personnel. Perhaps your Unit Manager can

help with your housing issues.

(Id. at 25 (b); Id.).

In his appeal, Murray challenged CHCA Martin’s expertise on the activities

of inmates in housing units and whether they are smoke free. He also reiterated

that he disagreed with the rhinitis diagnosis and stated that he refused the allergy

medication because he learned through research that rhinitis may be early signs of

bronchitis, “and what may very well be early stages of something far worst [sic].”

(Id. at 25(c); Id.). Defendant Mahally responded stating, in pertinent part, that

“there has been no wrong-doing by medical personnel” and “SCI-Dallas operates

in accordance with policy1.1.7 Clean Indoor Air Act which prohibits smoking in

any Department buildings.” (Id. at 25(d); Id.).

In his appeal to the SOIGA, Murray stated that he felt “the administrative

staff of SCI-DALLAS is either in denial, complicity or deliberately indifferent to

the blatant disdain and disregard of the DC-1.1.7 Clean Indoor Air Act policy.” (Id.

at 25(e); Id.). He reiterated that he was “pretty certain that his

respiratory/mucus/congestion, etc., problem is early stages of Bronchitis; and

perhaps something far more worst [sic].” (Id.; Id.). The SOIGA upheld the lower

level grievance responses. (Id.; Id.).

Murray also submitted a DC-135A, Inmate Request to Staff Member stating

that he had recently been diagnosed with ETS related allergies and that the medical

department denied his request to wear a mask and instructed him to direct the

request to housing unit management. (Id. at 26; Id. at 26). He stated “I am here

requesting of you, that I be provided with a duck-bill mask or painter’s mask and

permitted [only] to wear it while in the housing unit to minimize my exposure to

ETS while in the housing unit…” On February 19, 2019, Defendant Bohinski

responded by informing him that “DocNet” did not list his ETS related allergies

and, “[a]s such, there are no restrictions listed so there is nothing to approve.” (Id.

at 26(a); Id.).

Murray then filed Grievance Number 789896 asserting that he did not

receive a response to his request to wear a mask on the housing unit from

Defendants Mahally, Miller, Bohinski or Marsico. (Id. at 27; Id. at 27). In his

grievance response, Defendant Goyne informed him that, although Defendants

Mahally and Miller did not receive his request, Defendant Marsico did and

forwarded it to Defendant Bohinski, who provided him with a response. During

the appeal, Defendant Mahally confirmed that neither his office nor Deputy Miller

received the Inmate Request; however, he felt that Major Bohinski adequately

addressed the concerns raised in the request slip. (Id.; Id.).

On June 28, 2019, Murray filed Grievance Number 809441, claiming that

Corrections Officer McCoy (“Officer McCoy”) lit a cigarette in front of him that

day, and then “explode[d] into a profanity lace[d] diatribe” when he told her that

she would no longer be able to smoke after July 1, 2019. (Id. at 28(a); Id. at 28).

He also identified Officer McCoy as being “the most flagrant violator of the DC-

1.1.7” No Smoking Policy and that Defendant Marsico was aware of Officer

McCoy’s smoking but “has never stopped her.” (Id.; Id.). The grievance was

denied on August 5, 2019. (Id. at 28(b); Id.). The grievance officer informed

Murray that he interviewed Officer McCoy and she denied violating any

department policy or speaking to Murray in a discourteous or unprofessional

manner. In his appeal, Murray acknowledged that since he filed his grievance, he

has not seen Officer McCoy smoking. (Id. at 28(c); Id.).

Effective June 1, 2019, tobacco products were no longer available for

purchase through DOC facility commissaries in preparation for the conversion to a

tobacco-free environment by July 1, 2019. (Doc. 140-1, p. 2). Effective July 1,

2019, all DOC facilities were converted to a tobacco-free environment. (Id.).

“Tobacco products (lighters, cigars, cigarettes, pipe cleaners, filters, rolling papers,

pipes, roller aprons,, rollers, and smokeless tobacco) will be considered

contraband. Inmates will no longer be permitted to use or possess tobacco

products within the secure perimeter of the institution.” (Id.).

On July 26, 2019, Murray was seen by Dr. Renato Diaz for his Annual

Preventative/Wellness visit. (Id. at 29; Id. at 29). Murray had no complaints. (Id.;

Id.).

On August 6, 2019, Murray requested sick call stating that for months he

had been experiencing some problem in his lungs that is symptomatic of either

bronchitis or COPD. He reported “symptoms of constant heavy mucus/sputum

build up in chest area, nostrils, difficulty breathing during exertion, etc.” (Doc.

134 ¶ 30). At sick call, he stated that he did not have a cough and his nasal

discharge was clear. (Id.). He also clarified that the only time he experienced

difficulty breathing was with extreme exertion such as running or playing

basketball. (Id.). Defendant DeBoer examined him and noted that his ears were

clear, his nose was pink with a small amount of clear mucous, and his pharynx was

pink with no exudate. (Id.). She asked him to perform a peak flow, but noted that

he exhibited poor effort despite her encouragement. (Id.). His respiration rate and

oxygen levers were normal. DeBoer reviewed Murray’s electronic medical record,

and, although there was no evidence of lung disease, she ordered a chest X-ray.

(Id.). The chest X-ray, which was taken on August 8, 2019, revealed no acute

radiographic evidence of acute cardiopulmonary disease. (Id. at 31).

On August 19, 2019, Murray requested to be seen during sick call because

he was suffering from chronic medical problems regarding mucous build up in his

nose, throat, chest and lungs. (Id. at 32). He also requested to see his X-ray

results. Defendant DeBoer reviewed the X-ray results with him and explained that

the films showed no evidence of pulmonary disease. (Id.).

On September 28, 2019, Murray filed Grievance Number 826496, claiming

that since July 1, 2019, he has been subjected to secondhand smoke from staff and

inmates using vaping tobacco products in the housing unit. (Doc. 134, ¶ 34; Doc.

157, ¶ 34). He claims the exposure was causing heavy mucus build-up in his chest,

throat and nose and minor headaches. He sought to cease the use of vaping

products in the facility, and to be provided with a mask. (Id.). An investigation

determined Murray’s claims to be completely unfounded. (Id.; Id.)

On November 13, 2019, he signed up for sick call complaining of ongoing

mucus in his throat. (Id. at 35; Id. at 35). He informed Physician’s Assistant

Devon Woolfolk (“PA Woolfolk”), that he was always clearing his throat, having

post-nasal drip and suffering from a cough. He acknowledged that he has not tried

any medications, because he does not like taking them. Although he was not a

smoker, he reported to PA Woolfolk that his symptoms were worse when he was

around smoke. He denied having a fever or chills, aches, ear pain, nausea or

vomiting, abdominal pain, chest pain, shortness of breath, wheezing, headache,

dizziness, sneezing, or itchy eyes. PA Woolfolk’s examination revealed that

Murray’s eyes, ears, mouth, tongue, and pharynx were normal. His nose exhibited

mild hypertrophy and slight clear congestion. (Id.; Id.). His lungs showed no signs

of wheezing, rhonchi, or rales. (Id.; Id.). PA Woolfolk explained that his

symptoms were most consistent with rhinitis. (Id.; Id.). Murray refused to take

any antihistamines but agreed to undergo screening bloodwork. (Id.; Id.). The

bloodwork completed on November 18, 2019, was normal. (Id.; Id.).

During his August 23, 2018, deposition, Murray testified as follows:

a. He was not aware whether his family members suffered from any

lung conditions.

b. He did not have a lung condition and never treated for one.

c. He had no measuring device to determine the level of secondhand

smoke at SCI-Dallas, nor had he seen anyone using such a device at

SCI-Dallas.

d. He admitted that when his grievance was answered advising him to

seek medical attention, he did not do so because there was no reason to

seek medical attention.

e. He admitted that he did not have a cellmate who smoked because he

was designated as a “Z-Code”, meaning single cell status.

(Doc. 134 ¶ 21; Doc. 157, ¶ 21).

III. DISCUSSION

A. Defendant DeBoer

1. Exhaustion of Administrative Remedies

Defendant DeBoer first seeks the entry of summary judgment based on

Murray’s failure to properly exhaust his administrative remedies as required by the

Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997(e)a. The PLRA

“mandates that an inmate exhaust ‘such administrative remedies as are available’

before bringing suit to challenge prison conditions.” Ross v. Blake, 136 S. Ct.

1850, 1856 (2016); see Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (“[I]t is

beyond the power of this court—or any other—to excuse compliance with the

exhaustion requirement, whether on the ground of futility, inadequacy or any other

basis.”). “[T]o properly exhaust administrative remedies prisoners must ‘complete

the administrative review process in accordance with the applicable procedural

rules,’ rules that are defined not by the PLRA, but by the prison grievance process

itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (citation omitted) (quoting

Woodford v. Ngo, 548 U.S. 81, 88 (2006). Accordingly, a prisoner who fails to

request monetary damages in the grievance process is barred from bringing a claim

for monetary relief in federal court. See Cunningham v. Zubsic, 2019 WL 134209,

at *5 (W.D. Pa. Jan. 8, 2019); Wright v. Sauers, 729 F. App’x 225, 227 (3d Cir.

2018). To “complete the administrative review process,” means “substantial”

compliance with the prison’s grievance procedures. See Spruill v. Gillis, 372 F.3d

218, 231 (3d Cir. 2004) (citing Nyhuis, 204 F.3d at 77–78).

While the PLRA requires that prisoners comply with the procedural

demands of a system created by their jailors, those jailors must also comply with

the demands of the system they created. Shifflett v. Korszniak, 934 F.3d 356, 365

(3d Cir. 2019). Consequently, “[a]s soon as a prison fails to respond to a properly

submitted grievance or appeal within the time limits prescribed by its own policies,

it has made its administrative remedies unavailable and the prisoner has fully

discharged the PLRA’s exhaustion requirement.” (Id.).

“The only limit to § 1997e(a)’s [exhaustion] mandate is the one baked

into its text: An inmate need exhaust only such administrative remedies as

are ‘available.’” Ross, 136 S. Ct. at 1862 (quoting § 1997e(a)). In other

words, “the exhaustion requirement hinges on the ‘availab[ility]’ of

administrative remedies: An inmate, that is, must exhaust available

remedies, but need not exhaust unavailable ones.” Id. at 1858 (quoting §

1997e(a)). “[T]he ordinary meaning of the word ‘available’ is ‘capable of

use for the accomplishment of a purpose,’ and that which ‘is accessible or

may be obtained.’” Id. (quoting Booth, 532 U.S. at 737–38 (internal

citations and quotation marks omitted)). “Accordingly, an inmate is

required to exhaust those, but only those, grievance procedures that are

‘capable of use’ to obtain ‘some relief for the action complained of.’” Id. at

1859 (Booth, 532 U.S. at 738).

Defendant DeBoer is mentioned in Grievance Number 786403. (Doc. 134, ¶

25; Doc. 157, ¶ 25; Doc. 139-4, p. 19). Therein, Murray describes his February 6,

2019, sick call appointment during which Defendant DeBoer diagnosed him with

allergic rhinitis, a diagnosis with which he “vigorously disagreed.” He closed the

grievance with the following: “Relief sought here: I want to be examined by a

ETS or indoor pollutant medical specialist, and also be provided with a duck-bill or

painter’s mask while housed in I-unit.” (Doc. 139-4, p. 19). He sought the same

relief in both his appeal to the Facility Manager and to the SOIGA. (Doc. 139-4,

pp. 21, 23). The DOC’s Inmate Grievance System, set forth in DC-ADM 804,

specifically provides that “[i]f the inmate desires compensation or other legal relief

normally available from a court, the inmate must request the specific relief sought

in his/her initial grievance.” (Doc. 139-3, p. 5). Grievance Number 786403, the

sole grievance in which Defendant DeBoer is named, is devoid of a request for any

of the relief Murray seeks in his supplemental complaint. (Doc. 139-4, p. 19; Doc.

79, pp. 9, 10). He did not seek monetary relief, punitive damages, or request the

type of declaratory or injunctive relief he seeks in his supplemental complaint.

DeBoer is entitled to an entry of summary judgment.

2. Merits

Even had Murray properly exhausted, DeBoer would be entitled to summary

judgment on the merits. For the delay or denial of medical care to rise to a

violation of the Eighth Amendment’s prohibition against cruel and unusual

punishment, a prisoner must demonstrate “(1) that defendants were deliberately

indifferent to [his] medical needs and (2) that those needs were serious.” Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate indifference requires proof

that the official “knows of and disregards an excessive risk to inmate health or

safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference

has been found where a prison official: “(1) knows of a prisoner’s need for medical

treatment but intentionally refuses to provide it; (2) delays necessary medical

treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving

needed or recommended treatment.” Rouse, 182 F.3d at 197. Deference is given

to prison medical authorities in the diagnosis and treatment of patients, and courts

“disavow any attempt to second-guess the propriety or adequacy of a particular

course of treatment . . . (which) remains a question of sound professional

judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.

1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). “Allegations

of medical malpractice are not sufficient to establish a Constitutional violation,”

nor is “[m]ere disagreement as to the proper medical treatment.” Spruill v. Gillis,

372 F.3d 218, 235 (3d Cir. 2004). A “failure to provide adequate care ... [that] was

deliberate, and motivated by non-medical factors” is actionable under the Eighth

Amendment, but “inadequate care [that] was a result of an error in medical

judgment” is not. Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); Estelle v.

Gamble, 429 U.S. 97, 105–06 (1976).

When Murray presented for treatment on February 6, 2019, DeBoer

considered his symptoms and, after she conducted an examination, administered a

diagnostic peak flow test, and evaluated his respiration rate and oxygen levels, she

concluded that he suffered from allergic rhinitis. She explained that his symptoms

can be attributed to an irritative process from smoke exposure triggering mucous

production as well as other symptoms and suggested a prescription for Zyrtec. He

declined the Zyrtec, commented that they should stop smoking on the block, and

requested a mask. DeBoer advised him that she had no authority to prevent other

inmates from smoking or direct DOC staff to stop smoking and could not issue him

a mask. Pursuant to DOC regulations in effect at the time, and prior to COVID-19,

inmates were not permitted to wear face coverings in the housing units, including

medical masks. (Doc. 139-11, ¶ 6).

The record demonstrates that DeBoer rendered adequate medical attention

and treatment based on Murray’s symptoms, complaints, and diagnostic tests and

provided him a treatment option. She explained her inability to resolve his housing

situation or provide a mask based on constraints associated with her position in the

medical department and DOC policies. There is not a scintilla of evidence that

Defendant DeBoer acted with deliberate indifference to Murray’s medical needs.

As such, even had Murray properly exhausted his administrative remedies,

summary judgment would be entered in DeBoer’s favor on the merits.

B. DOC Defendants

The Eighth Amendment “requires that inmates be furnished with the

basic human needs, one of which is ‘reasonable safety’.” Helling v.

McKinney, 509 U.S. 25, 33 (1993) (quoting DeShaney v. Winnebago County

Dep’t of Social Servs., 489 U.S. 189, 200 (1989)). A prisoner may bring an

Eighth Amendment claim for exposure to levels of ETS that pose an

unreasonable risk of serious damage to the prisoner’s future health. Helling,

509 U.S. at 35. “An inmate alleging such a violation can base his claim on

either a present or future injury, both types involving an objective and

subjective element. In both instances, adoption of an anti-smoking policy

“will bear heavily on the inquiry into deliberate indifference.” Helling, 509

U.S. at 36.

1. Present Injury

For a present injury case, a plaintiff must show (1) a sufficiently

serious medical need related to the ETS exposure and (2) deliberate

indifference by prison authorities. Atkinson, 316 F.3d at 266.

Murray has failed to demonstrate that he suffers a sufficiently serious

medical need related to ETS exposure. During his August 23, 2018 deposition, he

testified that he did not have a lung condition and never treated for one. (Doc.

139-6, pp. 43-46). He further testified that when he was advised in March 2017,

via the grievance system, to seek medical attention if he was experiencing health

issues, he did not do so because there was no reason to seek medical attention.

(Doc. 139-7, pp. 7-9).

He first sought medical attention related to ETS and attended sick call on

February 6, 2019, almost seventeen months after he filed this action. At that time,

he was diagnosed with allergic rhinitis. According to the record, allergic rhinitis is

an allergy or irritative process from smoke exposure triggering mucous production

as well as other symptoms, which is managed with an antihistamine prescription.

Murray declined the prescription.

More than five months passed. On August 6, 2019, he sought medical

treatment for symptoms of constant heavy mucus/sputum build up in chest

area and nostrils, and difficulty breathing during exertion. When seen by

Defendant DeBoer he denied having a cough and reported that the only time

he experienced difficulty breathing was with extreme exertion such as

running or playing basketball. Following an unremarkable examination,

administration of a diagnostic peak flow test, and assessment of respiration

rate and oxygen levels, which were normal, Defendant DeBoer ordered a

chest X-ray. The chest X-ray revealed no acute radiographic evidence of

acute cardiopulmonary disease.

On August 19, 2019, Murray requested a sick call stating that he suffered

from chronic medical problems, regarding mucous build up in his nose, throat,

chest and lungs and requested to see his X-ray results. Defendant DeBoer

reviewed the X-ray results with him and explained that the films showed no

evidence of pulmonary disease. (Id.).

Another three months passed. On November 13, 2019, he sought treatment

for ongoing mucus in his throat. At sick call, he informed PA Woolfolk that he

was always clearing his throat, experiencing post-nasal drip, and suffering from a

cough. He indicated that his symptoms worsened when he was around smoke. He

denied having a fever or chills, aches, ear pain, nausea or vomiting, abdominal

pain, chest pain, shortness of breath, wheezing, headache, dizziness, sneezing, or

itchy eyes. Upon examination, Murray’s eyes, ears, mouth, tongue, and pharynx

were normal, and his nose exhibited mild hypertrophy and slight clear congestion.

His lungs showed no signs of wheezing, rhonchi, or rales. PA Woolfolk explained

that his symptoms were most consistent with rhinitis. Murray acknowledged that

he has not tried any medications because he does not like taking them. He refused

to take an antihistamine but agreed to undergo screening bloodwork, which yielded

normal results.

Since the inception of this action in 2017, Murray has sought medical

attention for ETS related symptoms on four occasions. These requests came

over the course of approximately nine months in 2019. During that time,

medical providers twice diagnosed him with allergic rhinitis. The condition,

which in Murray’s case caused a runny nose, post-nasal drip, clearing of the

throat, mucous build-up, and the occasional cough, is managed by an

antihistamine prescription. Murray refuses to take the prescription. A chest

X-ray taken in August 2019, was normal. Bloodwork drawn in November

2019, also spawned normal results. Murray has failed to demonstrate a

sufficiently serious medical need related to ETS exposure. Hence, the DOC

Defendants are entitled to an entry of summary judgment on the present

injury claim.

2. Future Injury

For a future injury case, a plaintiff must show (1) that ‘the risk of

which [plaintiff] complains is not one that today’s society chooses to

tolerate,’ and (2) deliberate indifference by prison authorities. Helling, 509

U.S. at 36, 113 S.Ct. 2475.” Spellman v. Sec’y Pennsylvania Dep’t of Corr.,

751 F. App’x 251, 253 (3d Cir. 2018). To prove the objective element, the

plaintiff must show that he himself is “being exposed to unreasonably high

levels of [ETS] .” Helling, 509 U.S. at 35. Among the factors to be

considered in evaluating this element are the “seriousness of the potential

harm and the likelihood that such injury to health will actually be caused by

exposure to [ETS],” as well as “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.” Id. at 36. To prove

the subjective element, the plaintiff must demonstrate “deliberate

indifference” on the defendants’ part, taken “in light of the prison

authorities’ current attitudes and conduct.” Id. Related to the subjective

element, defendants may raise “arguments regarding the realities of prison

administration.” Id . at 37.

With regard to the objective element, Murray submits his own declaration

and numerous declarations from smoking and non-smoking inmates who, at some

point during the relevant time frame, were also housed at SCI-Dallas. (Doc. 156-1,

pp. 95-130). The non-smoking inmates declare that it is virtually impossible for a

non-smoking inmate to be free of exposure to secondhand smoke at SCI-Dallas

where inmates are permitted to freely and openly smoke anywhere in the inmate

housing units. (Id. at pp. 114-130). Of the twelve smokers, seven executed a form

declaring “I am an inmate that consistently uses and/or consume[s] smoking

tobacco products” and “I have been allowed by staff to freely use/consume

smoking tobacco products (at any time and anywhere) in the inmate housing

units.” (Id. at 100-102, 105-108). Several others indicate the same but specify the

block or unit where they are allowed to freely smoke, namely E, F, I and J Units,

and I block. (Id. at 95-97, 103-104, 109-113).

Although the declarations indicate that some inmates freely smoked within

the housing units at SCI-Dallas, they do not demonstrate Murray was exposed to

unreasonably high levels of ETS such that it created a risk so grave that it violated

contemporary standards of decency. Per his declaration, there are multiple housing

units (he refers to at least 7) and each unit houses between 150 and 200 inmates.

(Doc. 156-1, p. 195, ¶¶ 8, 9). Murray submitted declarations from only twelve

smokers.

Further, the declarations provide no evidence of Murray’s actual exposure to

ETS. None of the smokers declare that they regularly smoked in Murray’s

presence or that they were housed on the same unit or block as Murray. Nor did

any of them share a cell with Murray. In fact, Murray never shared a cell with a

smoker. For the entirety of his stay at SCI-Dallas he was designated Z-Code, or

single cell status.

Helling and Atkinson require more than what these declarations offer.

Compare Helling, 509 U.S. at 35, 113 S.Ct. 2475 (holding that inmate, who

bunked with cellmate who smoked five packs a day, was exposed to unreasonably

high levels of ETS), and Atkinson, 316 F.3d at 264–65 (holding that inmate, who

shared cell with two constant smokers for seven months, was exposed to

unreasonably high levels of ETS), with Richardson v. Spurlock, 260 F.3d 495, 498

(5th Cir. 2001) (finding that sitting near smokers sometimes is not unreasonable

exposure). “Helling did not read the Eighth Amendment as mandating smoke-free

prisons. It is impossible to read any such per se rule into Helling’s ‘objective’

element.” Scott v. District of Columbia, 139 F.3d 940, 942 (D.C.Cir.1998); see

also Mills v. Clark, 229 F.3d 1143, at *5 & n. 5 (4th Cir. 2000) (table) (“Helling

does not guarantee plaintiff a smoke free environment”).2

Murray’s failure to submit evidence showing that he was exposed to

unreasonably high levels of ETS compels an entry of judgment in favor of the

DOC Defendants on the future injury claim.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motions (Docs. 133, 135) for

summary judgment will be granted.

An appropriate Order will issue.

2 Significantly, effective June 1, 2019, tobacco products are no longer available for purchase

through the DOC facilities’ commissaries and, effective July 1, 2019, all DOC facilities were

converted to tobacco-free environments. (Doc. 140-1, p. 2).