Opinion
00-CV-1221
February 16, 2001
KARL AHLERS, No. 82A4134, Staten Island, New York plaintiff pro se. ELLIOT SPITZER, Attorney General, (Hillary A. Tennant, Esq., of counsel) New York, New York for defendant.
MEMORANDUM AND ORDER
Plaintiff Karl Ahlers pro se brought this action under 18 U.S.C. § 1983. Ahlers alleges that the defendants, pursuant to their authority under state law, deprived him of his constitutional rights under the First, Fifth, Eighth and Fourteenth Amendments of the United States Constitution by implementing a no-smoking policy at the Arthur Kill Correctional Facility("the Facility"), increasing, deliberately and temporarily, his exposure to environmental tobacco smoke despite his documented allergy to such smoke.
Defendants move to dismiss the complaint for failure to state a claim under Rule 12(b)(6) and for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Defendants erroneously assert that this motion was made under Fed.R.Civ.P. 12(c). They also move to dismiss on the ground that defendants are entitled to qualified immunity from suit as officials performing discretionary functions.
I
The complaint asserts, in substance, the following facts. Ahlers has been an inmate at the Facility operated by the New York State Department of Correctional Services ("the Department") since 1982. He has been medically treated for allergies including an allergy to tobacco smoke, from 1984 through approximately 1995. On or about September 1, 1999, defendants Commissioner Goord and Deputy Commissioner Annucci of the Department promulgated a "Smoke-free Policy," outlined in a plan to eliminate gradually smoking indoors throughout the Facility.
The policy was to be implemented in four six-month phases. Phase I, July 1 through December 31, 1999, was a period of education of inmates and staff about the project. Phase II, January 1 through June 20, 2000, inmates may smoke within housing units and dormitories, but not beyond. In Phase III, July 1 through December 31, 2000, inmates were allowed to smoke only in their sleeping cubicles within the dormitories. Phase IV, beginning January 1, 2001, prohibits indoor smoking in all areas of the facility.
On October 13, 1999, Ahlers wrote a letter to defendant Commissioner Goord objecting to the second and third phases of the plan, when smoking would be restricted to dormitories and sleeping areas. Ahlers contended that, since all smoking previously allowed throughout the facility would be permitted only in the dormitories, there would likely be an increase in the amount of environmental tobacco smoke to which he would be exposed.
Ahlers also noted that increased smoking in the sleeping areas might well result in an increased fire hazard, which "could be a violation of constitutional guarantees against cruel and unusual punishment."
Goord forwarded Ahlers' letter to Deputy Commissioner Annucci, who replied to Ahlers on October 28, 1999, explaining that the Department had determined, based on the experience of other correctional institutions, that a gradual phase-in was the optimal way to implement the no-smoking policy. Annucci did not otherwise address Ahlers' concerns.
Ahlers replied to Annucci on November 5, 1999, asserting that his concerns were not adequately addressed, and evidently he never received a response to that letter.
Ahlers filed this action on February 29, 2000, alleging that defendants conspired to violate and did violate his constitutional rights under the First, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. He seeks (1) a declaratory judgment that defendants conspired to and did violate his constitutional rights, and (2) a temporary and permanent injunction, as well as (3) compensatory and punitive damages, and costs and attorneys fees.
Ahlers' specific claim is that defendants are violating his Eighth Amendment right to be free from cruel and unusual punishment, with deliberate indifference to his basic human needs. He argues that, by restricting smoking to the sleeping areas during the second and third phases of the program, defendants are deliberately exposing him to increased smoke, and are ignoring his medical needs. He also says that they are inflicting inhumane treatment by deliberately exposing him to a greater risk of fire.
Ahlers includes the usual allegations that defendants have acted maliciously under color of state law to cause him harm, including "physical, mental and emotional anguish."
Ahlers makes a fleeting reference to the First Amendment. But the Court cannot discern what injury he thinks he has suffered by the alleged violation of the First Amendment. Perhaps he intended to claim that his right to "petition the Government for a redress of grievances" had somehow been "abridged." Insofar as Ahlers purports to assert a First Amendment claim, it will be dismissed for failure to state a claim under Rule 12(b) (6)
II
Defendants first argue that the complaint should be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) because the Eleventh Amendment bars suit in federal court against a state by one of its citizens, absent the state's consent to suit or an express statutory waiver of immunity.
Federal courts have jurisdiction to grant equitable relief from the unconstitutional actions of state officials. The Supreme Court of the United States, in Ex Parte Young, 209 U.S. 123 (1908), held that a suit challenging the constitutionality of a state official's action is not one against the State. Because an unconstitutional action cannot be authorized by the State, the official is "stripped of his official or representative character and is subject to the consequences of his official conduct."Id. at 160.
That doctrine was refined in Edelman v. Jordan. 415 U.S. 651 (1974), which held that when a plaintiff sues a state official alleging a violation of federal law, the federal court may award prospective injunctive relief, but may not award monetary relief. Such relief must come from state funds; thus the state is the real party in interest, and immune from suit under the Eleventh Amendment.
The Court further explained the concept of prospective relief inMilliken v. Bradley, 443 U.S. 267 (1977), finding that the federal court could impose an injunction compelling a state to implement a school busing program at public expense because it operated prospectively to effect an integrated school system. Costs and attorneys fees may also be awarded as an acceptable public cost of the prospective relief granted. See Hutto v.Finney,?? 437 U.S. 678 (1978).
Though 42 U.S.C. § 1983 does not create federal jurisdiction, its purpose is to provide a claim against those acting "under color of state law who violate federal law. See Monroe v. Pape, 365 U.S. 167 (1961). Federal courts have jurisdiction to hear § 1983 suits both as a federal question under 28 U.S.C. § 1331 and also under 28 U.S.C. § 1343(3), which grants federal jurisdiction over suits redressing violations of federal laws providing for equal rights of citizens. Actions under § 1983 are available even where adequate state judicial remedies are potentially available. Monroe, 365 U.S. at 183.
The Court rejects defendants' argument that Ahlers' constitutional claims should be dismissed for lack of subject matter jurisdiction insofar as he seeks prospective injunctive relief. His claims for retroactive money damages will be dismissed for lack of subject matter jurisdiction.
A federal court may not exercise jurisdiction over claims against state officials for violations of state law, because to do so would be to intrude on state sovereignty. See Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 106 (1984) (quoting Young, 209 U.S., at 160). To the extent that Ahlers alleges violations of state law, those claims will be dismissed for lack of subject matter jurisdiction.
II
Defendants also argue that Ahlers has failed to state a claim for which relief can be granted, and his complaint should be dismissed under Fed.R.Civ.P. 12(b)(6)
On a motion to dismiss under Rule 12(b)(6) "the court must accept as true the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995) (internal citations omitted). Only if there are no facts alleged under which the plaintiff could prevail can the court dismiss the complaint. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)
Defendants rely on Helling v. McKinney, 509 U.S. 25 (1993). In that case, the non-smoking plaintiff was double-celled with a cellmate who smoked five packs of cigarettes per day. The Court nonetheless required plaintiff on remand to prove the objective factor that his exposure was to "unreasonably high levels" of smoke, and the subjective factor that the defendants had shown "deliberate indifference" to his medical needs or safety in so exposing him.
The Court went on to describe the pertinent facts to be considered in the inquiry, including whether the plaintiff was transferred to another facility, whether the prison adopted a no-smoking policy, and whether the conditions complained of violate contemporary standards of decency, or the risk is not one that today's society chooses to tolerate. Id. at 36.
While Helling is instructive as to the factors that a district court must evaluate when deciding whether the conditions to which an inmate is subject constitute cruel and unusual punishment, the present case turns on the facts alleged in the complaint.
Defendants' conclusory statements that "plaintiff cannot show that he was exposed to second-hand smoke at a level remotely comparable to that which existed in Helling" are not helpful. There are no facts alleged in either the complaint or the defendants' motion papers that warrant this assertion.
Whether Ahlers has suffered "unreasonably high levels" of smoke is a question of fact. The Court cannot decide the merits of that question on a motion to dismiss on the face of the complaint. On the record presented, the Court cannot say that the plaintiff has alleged no facts under which he could prevail. The Court thus rejects defendants' assertion that Ahlers has failed to state a claim under Fed.R.Civ.P. 12(b)(6)
III
Defendants claim that they are entitled to qualified immunity. Defendants are immune from suit alleging constitutional violations as state officials performing discretionary functions in the course of their duties, as long as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." SeeHarlow v. Fitzgerald, 457 U.S. 800, 816 (1982)
Defendants argue that Ahlers has not defined a clearly established constitutional right. The Court disagrees. Ahlers asserts an alleged violation of his right to be free from cruel and unusual punishment under the Eighth amendment. As the Supreme Court explained in Helling, while a prisoner may not have a clearly defined right to a smoke-free environmentper se, he does have a right to prison conditions which meet current standards of decency and reasonable safety, and to freedom from conditions which pose unreasonable risks to his health. 509 U.S. at 35; Estelle v.Gamble, 429 U.S. 97, 104 (1976). Whether the conditions to which Ahlers was subjected meet those standards is a question of fact.
As for defendants' contention that they could not have reasonably known that their actions violated plaintiffs' constitutional rights, defendants misapply Helling. As defendants concede, Helling does not set standards for calculating the amount of exposure to second hand smoke that constitutes cruel and unusual punishment. Rather than provide constitutional reassurance to prison officials that a given level of exposure to second hand smoke falls short of cruel and unusual punishment, that case did find that some such exposure stated a claim under the Eighth Amendment. In order for defendants to show that they acted reasonably, they would have to show that they took into consideration the exposure Ahlers was subjected to in fact and make an assessment based on current constitutional jurisprudence.
Defendants appear to assume that if society is willing to tolerate a level of smoke for the general public, that level is tolerable for prisoners. That cannot be the criterion for the reality of a life in prison. Unlike the general public, prisoners are subjected to the conditions against their will, without freedom or power to avoid or change those conditions. Their only recourse is either escape or litigation. Would large numbers of the general public tolerate the pumping of high levels of second hand smoke into their bedrooms against their will?
Ahlers had a documented medical history of treatment for allergies to tobacco smoke, and he so advised the defendants. All of the cases defendants cite in their effort to show that defendants acted reasonably rely on facts concerning the plaintiffs' exposure to smoke and their medical conditions.
It may be that defendants can prove as a matter of fact that they were reasonable in exposing Ahlers to the allegedly increased level of second hand smoke in his sleeping quarters for the duration of the second and third phases of that program, knowing his medical history and his individual living conditions, and that they were reasonable in their response to his concerns as expressed in his letters. They do not make such proof simply by moving to dismiss the complaint.
The motion to dismiss the complaint for lack of subject matter jurisdiction is granted with respect to the claims for retroactive compensatory and punitive money damages sought. The claims for money damages may be brought in state court. This Court is barred by the Eleventh Amendment from hearing plaintiffs' state claims and they are dismissed for lack of subject matter jurisdiction. Plaintiffs' putative claims under the First Amendment are dismissed for failure to state a claim.
The motion to dismiss the complaint is denied with respect to the prospective injunctive and declaratory relief.
The record does not show whether Phase IV of the no-smoking program has as yet been implemented. If so, Ahlers' environment is now smoke-free, the case in this court is moot, and Ahlers may pursue his damage claims in state court. The parties are directed to advise the court accordingly.
So ordered.