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Tellez v. Walker

September 25, 2008

RONALD TELLEZ, PLAINTIFF,
v.
ROGER E. WALKER, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER

REAGAN, District Judge

Plaintiff, formerly an inmate in the Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. In this action, Plaintiff complains about exposure to environmental tobacco smoke due to consistent cell assignments with smoking inmates.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(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 governmental 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 on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.

Plaintiff states that from March of 2005 through February 2006, he was housed in the protective custody unit at Menard. He alleges no cells in that unit are specifically reserved for non-smokers. Thus, except for six weeks during that year, he shared a cell with heavy smokers. He further alleges that he persistently requested to be housed with a non-smoker, but his requests and grievances were denied at every level of the administrative process. However, he alleges that other non-smoking inmates in protective custody were assigned to cell with other non-smokers. Finally, he claims that his cell-mate assignments were due in part to retaliation by Defendants for his persistent complaints about smokers.

The Supreme Court has held that an inmate "states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health." Helling v. McKinney, 509 U.S. 25, 35 (1993); see also Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). Exposure to second-hand smoke can give rise to two types of Eighth Amendment claims -- one for present injury and one for future injury. To state a claim based on present injury, an inmate must allege that prison officials knew of and disregarded "serious existing health problems" caused by the second-hand smoke. Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). If the inmate has a serious respiratory condition that low levels of second-hand smoke may aggravate, the prison must provide a non-smoking environment. See Powers v. Snyder, 484 F.3d 929, 932 (7th Cir. 2007); Alvarado, 267 F.3d at 653. Such is not the case here; Plaintiff makes no allegation that he suffers from any particular health problem that is aggravated by exposure to ETS.

To state a claim based on future injury, an inmate must allege that prison officials knew of and disregarded exposure to levels of second-hand smoke that "pose an unreasonable risk of serious damage to his future health." Helling, 509 U.S. at 35; see Alvarado, 267 F.3d at 651. Here, Plaintiff alleges that he shared a cell with a heavy smoker for almost a year, that he filed numerous requests for non-smoking cell mates without success, but that other non-smoking inmates had their similar requests granted. Coupled with his allegation that Defendants deliberately kept him with a smoker out of retaliation for his persistent complaints, these allegations are enough to state a claim based on a potential future injury. See Lehn v. Holmes, 364 F.3d 862, 864, 872 (7th Cir. 2004); Alvarado, 267 F.3d at 649-51.

In the statement of his claim, Plaintiff makes allegations against each named defendant except for Officer Moore. However, "[a] plaintiff cannot state a claim against a defendant by including the defendant's name in the caption." Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Accordingly, Defendant Moore is DISMISSED from this action with prejudice.

The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of Summons) for Defendants WALKER, FORD, UCHTMAN, RAMOS, CONDER, SPILLER, REARDON, ALMS, MURRAY, WALLER and McDANIELS. The Clerk shall forward those forms, USM-285 forms submitted by ...


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