                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-12-2009

Panton v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4840




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Recommended Citation
"Panton v. Nash" (2009). 2009 Decisions. Paper 1752.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1752


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                                                    NOT PRECEDENTIAL
                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 07-4840
                                        ___________

                                    ROBERT PANTON,
                                                  Appellant

                                             v.

                                  WARDEN JOHN NASH

                        ____________________________________

                      On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                                  (D.C. Civil No. 04-00356)
                      District Judge: Honorable Christopher C. Conner
                        ____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                       March 11, 2009
          Before: FISHER, JORDAN AND VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: March 12, 2009)
                                        _________

                                         OPINION
                                         _________

PER CURIAM

         Robert Panton, a federal inmate formerly confined at the Federal Correctional

Institution at Schuylkill1 , filed this Bivens action against Warden John Nash, alleging that



   1
       Panton was confined at FCI- Schuylkill from November 2000 until February 2004.
he was exposed to second-hand environmental tobacco smoke (“ETS”) in violation of his

Eighth Amendment right to be free from cruel and unusual punishment. He sought

compensatory damages, and to compel the establishment of a non-smoking unit at FCI-

Schuylkill.2 The District Court granted Nash’s motion for summary judgment, and denied

Panton’s motion for reconsideration. For the reasons that follow, we will affirm.

       Citing the Supreme Court’s decision in Helling v. McKinney, 509 U.S. 25 (1993),

the District Court first determined that Panton had failed to produce any objective

evidence concerning the level of ETS at FCI-Schuylkill, or that the amount of ETS

created an unreasonable risk. The District Court noted that:

              Although [Panton] was housed in the same cell with smokers
              when he first arrived at FCI-Schuylkill, it is undisputed that,
              immediately upon complaining of the exposure to smoke,
              Panton was removed from that environment and placed in a
              two-person cell with a nonsmoker. On one other occasion he
              was housed with a smoker but he admits that this was not a
              problem because the inmate did not smoke in the cell. With
              respect to the air quality in the cells, despite plaintiff’s
              contentions to the contrary, the cells were ventilated directly
              to the outside, not from cell to cell. And, the cells had
              windows that could be opened to allow fresh air to circulate
              through the cell.


Moreover, the District Court determined that Panton had failed to demonstrate that

“during his stay at FCI-Schuylkill, he was treated for any condition or ailment brought



   2
    In 2004, after Panton had been transferred to a different prison, indoor smoking was
eliminated altogether at FCI-Schuylkill.

                                             2
about by his exposure to second-hand smoke.” It further determined that “Nash’s

enforcement of a [smoking] policy that encouraged the separation of nonsmoking inmates

to the most practical extent indicates that [Nash] was not deliberately indifferent to any

serious risk.”

       We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291, and exercise

plenary review of the District Court’s order granting summary judgment in Nash’s favor.

See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007). Further, summary judgment is

proper where “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We may affirm the

District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d

798, 805 (3d Cir. 2000).

       In order to establish an Eighth Amendment violation with respect to conditions of

confinement, a prisoner must show that he has been deprived of “the minimal civilized

measure of life’s necessities,” such as food, clothing, shelter, sanitation, medical care, or

personal safety. Farmer v. Brennan, 511 U.S. 825, 832, 834 (1994); see also Wilson v.

Seiter, 501 U.S. 294, 303 (1991). The prisoner must also show that the deprivation was

sufficiently serious and that the defendants acted with deliberate indifference, i.e., that

prison officials knew of and disregarded an excessive risk to inmate health or safety. See

Farmer, 511 U.S. at 837. Specific to the instant case, a present injury claim based on


                                              3
exposure to ETS requires proof of (1) a sufficiently serious medical need related to ETS

exposure; and (2) deliberate indifference by the prison authorities to that need. See

Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003).3 Assuming, arguendo, that Panton

has satisfied the first component of the test, we nonetheless find that he has failed to

satisfy the second, subjective component; i.e., we conclude that Nash was not deliberately

indifferent to Panton’s serious medical need with respect to ETS exposure, which is fatal

to his Eighth Amendment claim.

       “[D]eliberate indifference describes a state of mind more blameworthy than

negligence,” but “it is satisfied by something less than acts or omissions for the very

purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at

835. In addition, “prison officials who act reasonably cannot be found liable under the

[Eighth Amendment].” Id. at 845. Here, it is undisputed that Nash set out clear smoking

regulations at the prison and made efforts to enforce that smoking policy. Indeed, Nash

was actively engaged in limiting the presence of ETS as evinced by his removing of the



   3
     The District Court’s opinion fails to adequately categorize Panton’s ETS exposure
claim as either a “present injury claim,” a “future injury claim,” or both. Normally, this
would not be insignificant, as each has its own test. See Atkinson, 316 F.3d at 262-69;
see also id. at 273 (Ambro, J., dissenting in part) (“ETS claims . . . come in two varieties -
present injury claims and future injury claims - and are measured by different standards”).
Here, however, the District Court’s misstep has no bearing on our disposition because our
analysis turns on the deliberate indifference inquiry, mandated by both tests. That said,
Panton’s claim is best categorized as one alleging “present injury,” given that he primarily
seeks compensatory damages, and also that his request for injunctive relief was rendered
moot almost immediately after he filed his complaint.

                                              4
“smoking area” designation from several of the common areas. When Panton first arrived

at FCI-Schuylkill (before Nash began his tenure as warden), his request to be transferred

out of a housing unit that permitted smoking was accommodated. Notably, Panton made

no further requests for cell reassignment because of smoking issues during the time that

Nash was warden.

       Furthermore, Panton’s medical records do not reveal any past or current

complaints specifically demonstrating excessive ETS exposure. See Fontroy v. Owens,

150 F.3d 239, 243 (3d Cir. 1998) (determining that Helling did not recognize a federal

cause of action seeking monetary damages for the risk or fear of injury absent present

physical harm). This is significant insofar as a prison official cannot be deliberately

indifferent to a serious medical need if there is insufficient documentation to put the

official on notice of that need. See Farmer, 511 U.S. at 837 (“the official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference”).

       There being no genuine issue of material fact, and because Panton’s failure to

show deliberate indifference with regard to ETS exposure entitles Nash to judgment as a

matter of law, we will affirm the District Court’s order granting summary judgment in

favor of Nash. We will also affirm the District Court’s denial of Panton’s motion for

reconsideration. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).




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