                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2005

Rivera v. Marcoantonio
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2030




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"Rivera v. Marcoantonio" (2005). 2005 Decisions. Paper 273.
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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 04-2030
                                    ________________

                                   PETER JOE RIVERA,
                                            Appellant


                                              v.

                  RALPH E. MARCOANTONIO, JR.; I. WILLIAMS #367;
                            RONALD GONZALEZ #367
                     ____________________________________

                      On Appeal From the United States District Court
                               For the District of New Jersey
                                (D.C. Civ. No. 03-cv-03689)
                       District Judge: Honorable Faith S. Hochberg

                      _______________________________________


                        Submitted Under Third Circuit LAR 34.1(a)
                                    August 29, 2005

            Before:     ROTH, McKEE and ALDISERT, CIRCUIT JUDGES.

                                (Filed: November 3, 2005 )

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Peter Joe Rivera appeals from the District Court’s order dismissing his complaint.

For the reasons set forth below, we will affirm in part, vacate in part, and remand for
further proceedings.

       In October 2001, Rivera was civilly committed to the Special Treatment Unit

(“STU”) in Kearny, New Jersey pursuant to the New Jersey Sexually Violent Predator

Act. When Rivera entered the STU, he was told that it was a smoke free facility. In

August 2003, he filed a complaint claiming that Darryl Williams, Senior Corrections

Officer, and Ralph Marcoantonio, Assistant Superintendent, violated his civil rights by

permitting other inmates and employees to expose him to “environmental tobacco smoke”

(“ETS”). Rivera also alleges that he faced retaliation for his complaints about the ETS.

       As part of his treatment at the STU, Rivera participated in group therapy, which

was directed by Ronald Gonzalez, a psychologist at the facility. Rivera alleges that

Gonzalez violated his right to freedom of speech, his right against self incrimination, and

his due process rights by insisting, during group treatment sessions, that Rivera provide

details regarding prior sexual acts and by inaccurately characterizing Rivera’s

improvement and rehabilitation when reporting to the courts. Rivera also claims that

Gonzalez violated his due process rights by opening and rejecting mail that contained

what Gonzalez considered sexually explicit material.

       Williams and Gonzalez each filed a motion to dismiss, which the District Court

granted. The court also dismissed the complaint as to Marcoantonio for failure to serve.

Rivera filed a timely appeal.

       We exercise plenary review over an order granting a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)(6). See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). We will

affirm a dismissal for failure to state a claim if we can “‘say with assurance that under the

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allegations of the pro se complaint, which we hold to less stringent standards than formal

pleadings drafted by lawyers, it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to relief.’” McDowell v. Del.

State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519,

520-21 (1972)). We accept as true the factual allegations in the complaint and all

reasonable inferences that can be drawn therefrom. Alston v. Parker, 363 F.3d 229, 232-

33 (3d Cir. 2004). Dismissal of a complaint without leave to amend is justified only on

the grounds of bad faith, undue delay, prejudice, or futility. Id. at 235-36.

       Rivera claims that exposure to ETS in the STU violated his constitutional rights.

Applying the standard set forth in Helling v. McKinney, 509 U.S. 25, 35-36 (1993),1 the

District Court determined that Rivera had not been exposed to unreasonably high levels of

ETS. We agree with the District Court’s conclusion that Rivera failed to state a claim.

Rivera complained of improper ventilation and imperfect enforcement of a no-smoking

policy. He admitted, however, that he can escape ETS exposure by going to his room.

He did not describe an unreasonable exposure to ETS. Compare, e.g., Helling, 509 U.S.

at 35 (holding that bunking with a cellmate who smoked five packs of cigarettes per day

exposed an inmate to an unreasonable risk of future harm from ETS exposure), and

Atkinson v. Taylor, 316 F.3d 257, 259 (3d Cir. 2003) (holding that a prisoner who



   1
    Because Rivera was civilly committed under the New Jersey Sexually Violent
Predator Act, he made his claim under the Due Process Clause of the Fourteenth
Amendment. See Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). However, Eighth
Amendment standards are applicable to his claim. See Inmates of Allegheny County Jail
v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979).

                                              3
claimed that he had shared a cell with constant smokers for many months stated a claim

for a violation of a clearly established right) with Richardson v. Spurlock, 260 F.3d 495,

498 (5th Cir. 2001) (holding that sitting near some smokers sometimes is not an

unreasonable exposure to ETS) and Pryor-El v. Kelly, 892 F. Supp. 261, 267 (D.D.C.

1995) (dismissing an ETS claim in which the plaintiff alleged “only that various unnamed

inmates and prison officials smoke ‘in the TV room, games room, and the letter writing

room’”).

       To the extent that Rivera made a claim of present injury because of exposure to

ETS, the appropriate standard against which to test his claims is Estelle v. Gamble, 429

U.S. 97 (1976). See Atkinson, at 316 F.3d at 266. He contended that exposure to

cigarette smoke has caused him to suffer respiratory distress and has aggravated his

diagnosed illness of tuberculosis. Even if Rivera has a serious medical need to be distant

from ETS, see, e.g., Atkinson, 316 F.3d at 268, his admission that he can avoid the

smoke and the occasional violations of the no-smoking policy undermines his claim of

deliberate indifference. His allegations, taken as a whole, do not describe conduct that

rises to the level of wanton infliction of pain. Furthermore, in light of the totality of his

allegations, the District Court did not abuse its discretion in denying leave to amend.

       Although Rivera did not state a claim based on ETS exposure, on the record before

us, it appears that he stated a claim of retaliation. See Rauser v. Horn, 241 F.3d 330, 333

(3d Cir. 2001). Contrary to Defendants’ assertions, Rivera has a constitutionally

protected right to seek redress for a perceived violation of his due process rights. See

Helling, 509 U.S. at 35-36. The facts alleged relating to Williams’ actions, including

                                               4
verbal abuse, encouraging other residents to take action against the “snitch,” and refusal

to unlock Rivera’s door, if proven, would rise to the level of “adverse action.” The

District Court thus erred in concluding that Rivera failed to state a retaliation claim.

       The District Court failed to address Rivera’s claim that Gonzalez violated his

constitutional rights by opening and rejecting his mail. We express no opinion as to the

contours or merits of this claim. Rivera also claimed that Gonzalez violated his rights by

requiring him to discuss past sexual acts, including those related to an offense for which

he had not been convicted. As we are remanding this matter and anticipate that there will

be further development of the record, we will not address the District Court’s analysis of

this claim. We note only that, unlike the plaintiffs in McKune v. Lile, 536 U.S. 24 (2002)

and Allison v. Snyder, 332 F.3d 1076 (7th Cir. 2003), whose participation in prison

programs was voluntary, Rivera apparently was required to participate in treatment, a

distinction that may have a bearing on the question of coercion.

       Finally, the District Court erred in dismissing the complaint as to Marcoantonio for

failure to serve. An affidavit filed by Defendants’ counsel in the District Court (D.C.

Doc. # 8) indicates that Marcoantonio was served on August 30, 2003.

       For the foregoing reasons, we will affirm in part, vacate in part, and remand for

further proceedings.




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