Alvarado, Chad J. v. Litscher, Jon E.

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3959

CHAD J. ALVARADO,

Plaintiff-Appellee,

v.

JON E. LITSCHER, Secretary, JANE

GAMBLE, B. MCCREEDY, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 99 C 0676--Barbara B. Crabb, Chief Judge.

ARGUED April 18, 2001--DECIDED September 28, 2001

Before HARLINGTON WOOD, JR., DIANE P. WOOD,

and WILLIAMS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. Chad

J. Alvarado filed a complaint pursuant to

42 U.S.C. sec. 1983 against Jon E.

Litscher, Secretary of the Wisconsin

Department of Corrections, Jane Gamble,

warden of Kettle Moraine Correctional

Institution ("KMCI"), and B. McCreedy,

health services manager at KMCI

(collectively referred to as "the

defendants"). The district court denied

the defendants’ motion to dismiss under

Fed. R. Civ. P. 12(b)(6) and on the

ground of qualified immunity. The

defendants filed a timely appeal as to

the qualified immunity issue only.

I. BACKGROUND

On October 10, 1999, Alvarado, acting

pro se, filed a complaint stating the

defendants deprived him of his Eighth

Amendment constitutional right in

violation of 42 U.S.C. sec. 1983. The

complaint alleged that Alvarado, a

twenty-seven-year-old male, suffers from

severe chronic asthma, which is made

worse by exposure to environmental

tobacco smoke ("ETS"). Medical

documentation submitted with the

complaint supports this allegation and

defendants do not dispute that Alvarado’s

asthma is severe. Letters and records

dating back to 1982 state that Alvarado

"is allergic to . . . smoke," and that he

has "a long history of perennial asthma."

The term "severe asthma" is also used,

and the records indicate multiple

hospitalizations and trips to the

emergency room for asthma-related

problems.

Alvarado maintains that while he was

processed at the Dodge Correctional

Institution in Waupun, Wisconsin, he

suffered exposure to ETS, causing his

asthma to worsen. Alvarado claims his

asthma continued to worsen after being

transferred to KMCI in Plymouth,

Wisconsin. Despite his placement in

KMCI’s non-smoking unit with a non-

smoking roommate, Alvarado claims that

other prisoners in the unit smoked in

violation of prison policy because the

guards were frequently not at their post

to enforce the smoking ban. Alvarado also

states that because smoking is permitted

in the common areas of the prison, he is

unable to participate in programs that

would enhance his chances of being

paroled. He alleges that his health

deteriorated as a result of his exposure

to ETS and he was forced to increase his

daily asthma medication dosages. He

maintains the defendants acted with

deliberate indifference to his complaints

about his exposure to ETS./1 Alvarado

filed multiple griev-ances within the

prison system regarding his ETS exposure

which were rejected or dismissed.

Alvarado also alleges that the medical

staff was going to put him in the

infirmary, but he chose not go because

such an action would have resulted in his

being withdrawn from a program for early

release.

Under the initial screening requirement

with an in forma pauperis proceeding,/2

the district court entered an order on

November 9, 1999, finding that Alvarado

had stated a claim upon which relief may

be granted, allowing Alvarado to proceed

with his complaint. The defendants then

filed a Rule 12(b)(6) motion to dismiss

for failure to state a claim for which

relief may be granted and asserted a

defense of qualified immunity. The

district court denied their motion to

dismiss, but, according to the court,

through an oversight, failed to address

the issue of qualified immunity.

Defendants appealed the denial, but the

case was remanded to allow the district

court to correct the error.

On October 13, 2000, the district court

issued its order explaining the denial of

defendants’ qualified immunity.

Specifically, the district court found

that the complaint stated a violation of

Alvarado’s Eighth Amendment right due to

the defendants alleged indifference to

Alvarado’s existing and future health by

allowing him to be exposed to ETS, and

that the right was clearly established at

the time of the violation. However, the

district court refused to decide the

factual issue of whether the exposure

reached a level sufficiently high enough

to violate contemporary standards of

decency as interpreted under the Eighth

Amendment.

II. ANALYSIS

"This Court reviews de novo the district

court’s denial of defendant’s motion to

dismiss on grounds of qualified

immunity." Milazzo v. O’Connell, 108 F.3d

129, 131 (7th Cir. 1997). When reviewing

a motion to dismiss, "We accept all the

factual allegations in the complaint and

draw all reasonable inferences from these

facts in favor of the plaintiff." Arazie

v. Mullane, 2 F.3d 1456, 1465 (7th Cir.

1993). A claim may be dismissed only if

"it appears beyond doubt that the

plaintiff can prove no set of facts in

support of his claim which would entitle

him to relief." Conley v. Gibson, 355

U.S. 41, 45-46 (1957). Allegations of a

pro se complaint are held "to less

stringent standards than formal pleadings

drafted by lawyers . . . ." Haines v.

Kerner, 404 U.S. 519, 520 (1972) (per

curiam). Accordingly, pro se complaints

are liberally construed. See Wilson v.

Civil Town of Clayton, Ind., 839 F.2d

375, 378 (7th Cir. 1988).

In order to state a cause of action

under 42 U.S.C. sec. 1983, the Supreme

Court requires only two elements: "First,

the plaintiff must allege that some

person has deprived him of a federal

right. Second, he must allege that the

person who has deprived him of the right

acted under color of state . . . law."

Gomez v. Toledo, 446 U.S. 635, 640

(1980). These elements may be put forth

in a "short and plain statement of the

claim showing that the pleader is

entitled to relief . . . ." Fed. R. Civ.

P. 8(a)(2). In reviewing the complaint on

a motion to dismiss, "no more [is

required] from plaintiff[’s] allegations

of intent than what would satisfy Rule

8’s notice pleading minimum and Rule

9(b)’s requirement that motive and intent

be pleaded generally." Triad Assoc., Inc.

v. Robinson, 10 F.3d 492, 497 (7th Cir.

1993).

Alvarado’s complaint stated an Eighth

Amendment claim when he alleged that

because of the prison officials’ deliber

ate indifference, he was being exposed to

levels of ETS which aggravated his

chronic asthma, thereby endangering his

existing health, a claim recognized as an

Eighth Amendment violation twenty-five

years ago in Estelle v. Gamble, 429 U.S.

97 (1976). Id. at 104 (holding that in

order to state a violation of the Eighth

Amendment, an inmate must demonstrate

that prison officials showed "deliberate

indifference to serious medical needs").

He also stated a valid claim as to his

future health under Helling v. McKinney,

509 U.S. 25 (1993). Id. at 35 (holding

that an inmate stated a cause of action

under the Eighth Amendment by alleging

that prison officials had, with

deliberate indifference, exposed him to

levels of ETS that posed an unreasonable

risk of serious damage to his future

health); Oliver v. Deen, 77 F.3d 156,

159-60 (7th Cir. 1996). Alvarado’s

complaint sufficiently alleged

deprivation of federal rights by one

acting under color of state law.

In addressing the district court’s

denial of defendants’ motion to dismiss

based on qualified immunity, we note that

a complaint is generally not dismissed

under Rule 12(b)(6) on qualified immunity

grounds. See Jacobs v. City of Chicago,

215 F.3d 758, 765 n.3 (7th Cir. 2000).

Because an immunity defense usually

depends on the facts of the case,

dismissal at the pleading stage is

inappropriate: "[T]he plaintiff is not

required initially to plead factual

allegations that anticipate and overcome

a defense of qualified immunity." Id. As

noted in Jacobs’ concurrence, "Rule

12(b)(6) is a mismatch for immunity and

almost always a bad ground for dismissal.

. . . and when defendants do assert

immunity it is essential to consider

facts in addition to those in the

complaint." Id. at 775 (Easterbrook, J.,

concurring).

Qualified immunity protects government

officials from civil liability when

performing discretionary functions so

long as "their conduct does not violate

clearly established statutory or

constitutional rights of which a

reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). To overcome a defense of

qualified immunity, the plaintiff must

first allege the deprivation of an actual

constitutional right, and second, show

that the right was clearly established at

the time of the alleged violation. See

Wilson v. Layne, 526 U.S. 603, 609

(1999). Because we have found that

Alvarado alleged the deprivation of valid

constitutional rights as to his existing

and future health, he has met the first

prong.

Under the second prong, as previously

noted, the danger to a prisoner’s

existing health needs has long been

recognized under Estelle. The remaining

question is whether the constitutional

right as to Alvarado’s future health was

clearly established in 1998-99 when the

violations occurred. To invoke a "clearly

established" right, the Supreme Court has

explained that the right must be

"particularized" to the extent that

"[t]he contours of the right must be

sufficiently clear that a reasonable

official would understand that what he is

doing violates that right." Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

Although the petitioner does not need to

point to a case identical to his own, he

must show that, "in light of pre-existing

law," a reasonable defendant would have

known that his actions were unlawful.

Id.; Nabozny v. Podlesny, 92 F.3d 446,

456 (7th Cir. 1996) ("Under the doctrine

of qualified immunity, liability is not

predicated upon the existence of a prior

case that is directly on point.").

The threat to future health was clearly

established in 1993 when the Supreme

Court held that a prisoner "states a

cause of action under the Eighth

Amendment by alleging that [prison

officials] have, with deliberate

indifference, exposed him to levels of

ETS that pose an unreasonable risk of

serious damage to his future health."

Helling, 509 U.S. at 35. In Helling, the

Supreme Court found that the prisoner had

stated a valid cause of action under the

Eighth Amendment and that the district

court had erred in ordering a directed

verdict in favor of the prison officials;

"We cannot rule at this juncture that it

will be impossible for McKinney . . . to

prove an Eighth Amendment violation based

on exposure to ETS. . . . [and] remand to

the district court to provide an

opportunity for McKinney to prove his

allegations . . . ." Id.

Since 1993, this circuit has addressed

ETS in the prison context on several

occasions. See Henderson v. Sheahan, 196

F.3d 839 (7th Cir. 1999); Oliver, 77 F.3d

156; Goffman v. Gross, 59 F.3d 668 (7th

Cir. 1995); Beauchamp v. Sullivan, 21

F.3d 789 (1994) (noting the Supreme Court

has recognized that "prison officials may

have a constitutional duty to protect

inmates from high levels of ambient ciga

rette smoke"). The petitioner in

Henderson failed to state a claim under

sec. 1983 because he had never been

diagnosed as having a medical condition

that necessitated a smoke-free

environment nor had he been treated for

any medical problems brought about by his

exposure to ETS. 196 F.3d at 846. In

Oliver, 77 F.3d at 160, the prison

medical director stated that Oliver

suffered from mild asthma which did not

require him to be placed in a cell with

only nonsmokers. Unlike the petitioners

in Henderson and Oliver, Alvarado

presented evidence of chronic, severe

asthma from childhood, which was worsened

by ETS. Although no case in our circuit

has previously addressed this issue on

point, Oliver’s focus on the seriousness

of the inmate’s medical condition under

the Helling analysis supports the

district court’sinterpretation. See id.

at 160; see also Hunt v. Reynolds, 974

F.2d 734, 735-36 (6th Cir. 1992) (finding

that Eighth Amendment is violated "by

forcing a prisoner with a serious medical

need for a smoke-free environment to

share his cell with an inmate who

smokes").

Under the reasonable person standard of

Harlow and Anderson, it is not

unreasonable to assume that in 1998-99,

five years after the decision in Helling,

prison officials knew or should have

known that even though Alvarado was

housed with a non-smoking cellmate on a

non-smoking unit, in light of his severe

asthmatic condition, an environment in

which ambient tobacco smoke is present

could pose a serious risk to his future

health, thereby constituting a violation

of the Eighth Amendment. Like the

complaint in Helling, Alvarado’s

complaint, liberally construed, alleges

that defendants’ deliberate failure to

enforce smoking rules is resulting in his

exposure to levels of ETS that are posing

an unreasonable threat to his future

health. See 509 U.S. at 28, 36. Given the

decision in Helling, the right of a

prisoner to not be subjected to a serious

risk of his future health resulting from

ETS was clearly established in 1998-99.

Both prongs of the Wilson test have been

met to defeat defendants’ qualified

immunity defense at this time.

III. CONCLUSION

For the above-stated reasons, we affirm

the district court’s denial of

defendants’ Rule 12(b)(6) motion to

dismiss on the ground of qualified

immunity.

FOOTNOTES

/1 Defendants argue at length that Alvarado never

alleged "deliberate indifference" on their part.

However, Alvarado’s original complaint alleges,

"The defendants in this action are actin [sic]

with deliberate indeference [sic] towards our

numerous request [sic] to remain smoke free,"

Conclusion of Statement of Claim by Plaintiffs,

para. 6, and the first paragraph of his memoran-

dum of Supporting Case Law filed with the com-

plaint, states, "Eighth Amendment protection

against against [sic] deliberate indeference

[sic] to prison health problems extends to condi-

tions that threaten to cause health problems in

the future, as eell [sic] current serious health

problems. Helling v. McKinney, 113 S.Ct. 2475 at

2480 (1993)."

/2 28 U.S.C. sec. 1915A provides in pertinent part:

(a) Screening.--The court shall review, before

docketing, if feasible or, in any event, as soon

as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress

from a governmental entity or officer or employee

of a government entity.

(b) Grounds for Dismissal.--On review, the court

shall identify cognizable claims or dismiss the

complaint, or any portion of the complaint, if

the complaint--

(1) is frivolous, malicious, or fails to state a

claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is

immune from such relief.