                                                             NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 12-3665
                                        ___________

                                   JOSEPH ARUANNO,
                                              Appellant

                                              v.

                             OFFICER GREEN, D.O.C. Staff;
                            STEVE JOHNSON, Administrator;
                                  CINDY SWEENEY
                        ____________________________________

                       On Appeal from the United States District Court
                                for the District of New Jersey
                           (D.C. Civil Action No. 09-cv-01542)
                         District Judge: Honorable Jose L. Linares
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      May 14, 2013

            Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges

                                (Opinion filed May 30, 2013)
                                       ___________

                                         OPINION
                                        ___________

PER CURIAM

      Pro se appellant, Joseph Aruanno, appeals from the order of the United States District

Court for the District of New Jersey dismissing his civil rights action for failure to state a

claim. We will affirm the District Court‟s judgment.
       The District Court‟s opinions entered on July 12, 2010, June 22, 2011, and August 30,

2012, contain recitations of the allegations of Aruanno‟s complaint and amended complaints

filed under 42 U.S.C. § 1983, from which the District Court quoted extensively. We need not

repeat those allegations in detail here and, instead, briefly note the following. Aruanno is

confined at the Special Treatment Unit (STU) in Avenel, New Jersey, and submitted a

complaint which he sought to proceed with in forma pauperis pursuant to 28 U.S.C. § 1915.

He named as defendants three staff members at the STU (Officer Green, Administrator Steve

Johnson, and Superintendent Cindy Sweeney), and listed various other individuals in an

attachment to the complaint. These included Lt. Robert Kent, Officer Clements, Administrator

Paul Lagana, then Commissioner George W. Hayman, then Public Advocate Ron Chen, then

DHS Commissioner Kevin Ryan, Director Merrill Main, Christine Todd Whitman, James

McGreevey, Richard Codey, and Jon Corzine. Aruanno alleged that defendants are denying

him proper access to the yard to minimize his exposure to indoor smoking and that defendant

Johnson is allowing smoking indoors, thus exposing him to environmental tobacco smoke

(“ETS”) which poses an unreasonable risk of harm to his health in violation of his Eighth and

Fourteenth Amendment rights.1 He further alleged that he was threatened and assaulted for

having brought the matter to the attention of the defendants. As relief, Aruanno sought ten

million dollars in damages and injunctive relief.



1
  As the District Court properly noted, because Aruanno is civilly committed, his ETS claim is
brought pursuant to the Due Process Clause of the Fourteenth Amendment. See Youngberg v.
Romeo, 457 U.S. 307, 315-16 (1982). Eighth Amendment standards are nonetheless
applicable as the minimal standard that must be met. See Inmates of Allegheny Cnty. Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979).
                                            2
       The District Court granted Aruanno in forma pauperis status and screened the complaint

for dismissal under § 1915(e)(2)(B). Even with the liberal construction afforded a pro se

litigant, the District Court concluded that the complaint was subject to summary dismissal.

The District Court dismissed the complaint against defendants Cindy Sweeney, Officer

Clements, George W. Hayman, Ron Chen, Kevin Ryan, Merrill Main, Christine Todd

Whitman, James McGreevey, Richard Codey, and Jon Corzine because Aruanno made no

specific, non-conclusory, factual allegations against them. With respect to defendants Johnson,

Officer Green, Lt. Kent, and Paul Lagana, the District Court determined that, although

mentioned in the body of the complaint, the factual assertions set forth against these defendants

were likewise conclusory or too nebulous to state a plausible claim as required by the Supreme

Court in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The District Court thus dismissed

Aruanno‟s complaint for failure to assert facts to support the conclusion that he had been

exposed to unreasonable levels of ETS, that officials were deliberately indifferent to this

exposure, or that he had been threatened and subjected to excessive force. However, the

District Court allowed Aruanno the opportunity to file an amended complaint to state a

cognizable claim. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

       Aruanno filed an amended complaint consisting of a five-page narrative. Aruanno

asserted, inter alia, that certain staff (namely, Kent, Green, and Lagana) have been observed

smoking indoors, that some staff members and patients feel as though they have a right to

smoke wherever and whenever they wish, and that, as a result, patients have been exposed to

smoking in the dayroom, the small yard, and the telephone room. Aruanno further stated that


                                             3
he was moved into a room that smelled of stale cigar or cigarette smoke and that, during the

actual move, he suffered nausea, chest pains, and difficulty breathing. Aruanno noted that he

was eventually permitted to go to “medical” where he was given medication. See Am. Compl.

at 3. The District Court screened the amended complaint and concluded that Aruanno failed to

provide factual support showing that he himself was exposed to an unreasonably high level of

ETS and, thus, he failed to satisfy the objective element of the ETS claim, nor did the facts set

forth in the amended complaint establish how each defendant was deliberately indifferent to a

health risk as a result of his ETS exposure as required by Helling v. McKinney, 509 U.S. 25,

35-36 (1993). Aruanno‟s amended complaint was thus dismissed for failure to state a claim

and he was afforded one final opportunity to amend his complaint to state facts establishing a

claim under Helling.

       Aruanno‟s second amended complaint fared no better. Despite the District Court‟s

admonishment that the second amended complaint must be complete on its face, and in total

disregard of the court‟s warning that it would not attempt to piece together allegations in the

complaint, amended complaint, and second amended complaint, Aruanno nonetheless filed a

document which the District Court accurately described as a “rambling letter.” The District

Court observed that, once again, Aruanno failed to describe the nature of the degree of his

exposure to ETS. Instead, referencing the opinion of the Surgeon General and the fact that

other ETS lawsuits have been filed by “residents with chronic breathing conditions” – thus,

putting defendants on notice of the problem – Aruanno insists that any exposure to ETS at this

point is constitutionally unreasonable. Having determined that Aruanno‟s assertion is not an


                                             4
accurate statement of the constitutional standard used to evaluate ETS claims, the District

Court concluded that Aruanno failed to assert non-conclusory facts showing that he was

exposed to unreasonable levels of ETS or that defendants were deliberately indifferent to that

exposure. As such, the District Court dismissed Aruanno‟s second amended complaint with

prejudice for failure to state a claim. This appeal followed.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary

review over the District Court‟s sua sponte dismissal under § 1915(e)(2)(B)(ii). Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a complaint

for failure to state a claim under § 1915(e)(2)(B)(ii) is the same as that for dismissing a

complaint pursuant to a motion filed under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. See id. “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Iqbal,

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       Upon careful consideration, we agree with the District Court‟s assessment of Aruanno‟s

complaint and amended complaints, and we will affirm for substantially the same reasons set

forth in the District Court‟s opinions. Aruanno did not allege sufficient factual allegations to

support a plausible claim that he was exposed to unreasonably high levels of ETS contrary to

contemporary standards of decency, see Helling, 509 U.S. at 35, or that any of the named

defendants were deliberately indifferent to any unreasonable health risks he faces in the STU

on account of his exposure to ETS. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (To

establish liability under the Eighth Amendment, an “official must both be aware of facts from


                                              5
which the inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.”). We will briefly address the issues Aruanno presents on appeal.

       Aruanno protests that the District Court incorrectly applied the standard set forth in

Helling to the facts alleged in his complaints. According to Aruanno, the District Court is

bound by the Surgeon General‟s statement that “any exposure to second hand smoke is

harmful” when considering the sufficiency of his allegations regarding his ETS claim. See

Informal Br. at 3. Aruanno also argues that the District Court “avoided state law and statute”

that prohibit indoor smoking in conducting its analysis. Id. at 4. Initially, we point out that

Aruanno‟s complaint was filed pursuant to 42 U.S.C. § 1983. “The Supreme Court has set

forth the two essential elements of a § 1983 action: „(1) whether the conduct complained of

was committed by a person acting under color of state law; and (2) whether this conduct

deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the

United States.‟” Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993) (quoting Parratt v.

Taylor, 451 U.S. 527, 535 (1981)). Aruanno‟s reliance on state laws and statutes is thus

misplaced. Additionally, while we do not question the veracity of the conclusion that exposure

to second hand smoke is harmful, the District Court correctly determined that it is the standard

set forth by the Supreme Court in Helling (e.g., that exposure to ETS is actionable where that

exposure causes an “unreasonable risk of serious damage” to a person‟s health) that is to be

employed in reviewing the sufficiency of Aruanno‟s allegations.

       Aruanno further asserts that the District Court “avoided undeniable evidence” regarding

the amount of his ETS exposure. Such was not the case. The District Court reviewed the


                                             6
complaint pursuant to the screening provisions set forth in 28 U.S.C. § 1915. No discovery

was conducted and no evidence submitted which the District Court could have ignored.

Contrary to appellant‟s contention, the District Court did not err by failing to appoint experts to

take samples from the walls of his cell and his blood, or to perform some mathematical

calculation based on the amount of cigarettes sold to patients in the STU and the number of

hours per day that smokers have access to the outdoor areas, in order to determine the amount

of ETS to which he has been exposed. That the factual allegations set forth in Aruanno‟s

complaints failed to state an ETS claim that was plausible on its face justified the District

Court‟s decision to summarily dismiss the action. See Iqbal, 556 U.S. at 678.

       Aruanno also seems to argue that the District Court ignored his claims that he was

denied medical attention and that excessive force had been used against him. With respect to

the allegation that he was denied medical attention, however, Aruanno acknowledged that he

eventually “complain[ed] to medical, where he was given medication.” See Am. Compl. at 3.

Moreover, on more than one occasion, Aruanno has stressed that he intended this case to be

focused on his claim regarding exposure to second hand smoke. Id.; Informal Br. at 2. We,

thus, cannot fault the District Court for failing to extract an additional claim based on the

denial of medical care from Aruanno‟s filings. Additionally, Aruanno has specifically denied

seeking to pursue a claim regarding excessive force. See Am. Compl. at 3 (“First, this case is

not about that excessive force but focuses on the smoking issue.”). Aruanno is a seasoned pro

se litigant, and the District Court committed no error in proceeding in accordance with his

expressed intentions.


                                              7
       As we discern no error in the District Court‟s dismissal of Aruanno‟s case for failure to

state a claim, we will affirm the judgment of the District Court.




                                             8
