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


11-3-2005

Griffin v. DeRosa
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2785




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"Griffin v. DeRosa" (2005). 2005 Decisions. Paper 271.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/271


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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      NO. 04-2785
                                   ________________

                                  WILLIE J. GRIFFIN,

                                           Appellant
                                            v.

                              C.J. DEROSA, Ft. Dix Warden;
                               BABCOCK, Captain, Ft. Dix;
                                    WRIGHT, Lt., et al.
                       ____________________________________

                      On Appeal From the United States District Court
                               For the District of New Jersey
                                (D.C. Civ. No. 03-cv-05597)
                        District Judge: Honorable Robert B. Kugler
                      _______________________________________


                        Submitted Under Third Circuit LAR 34.1(a)
                                    August 10, 2005

            Before:     ROTH, McKEE and ALDISERT, CIRCUIT JUDGES

                                (Filed: November 3, 2005)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

      Appellant, Willie J. Griffin, appeals from the District Court’s order dismissing his

complaint under 28 U.S.C. § 1915(e)(2). We will affirm.
       In November 2003, Griffin filed a civil rights complaint alleging that the absence

of security during a blackout at FCI-Fort Dix, during which a riot erupted, constituted

deliberate indifference to his safety in violation of the Eighth Amendment. Griffin also

alleges that he has been subjected to cruel and unusual punishment because the restrooms

in the prison do not have ventilation and he has been exposed to “environmental tobacco

smoke” (“ETS”) in the restrooms for the past twenty months. The District Court

dismissed his in forma pauperis complaint for failure to state a claim pursuant to 28

U.S.C. §§ 1915(e)(2) & 1915A(b)(1).

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

District Court’s dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2) is

plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Accordingly, “we

must accept as true the factual allegations in the complaint and all reasonable inferences

that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

       The District Court did not err in holding that Griffin did not state a claim for

failure to protect. To prevail on an Eighth Amendment failure to protect claim, a plaintiff

is required to show that (1) he is incarcerated under conditions posing a substantial risk of

serious harm (the objective element); and (2) prison officials acted with deliberate

indifference, i.e., that prison officials knew of and disregarded an excessive risk to inmate

health or safety (the subjective element). See Farmer v. Brennan, 511 U.S. 825, 833-34

(1994).



                                              2
       Griffin asserts that, during the 10-hour blackout, correctional officers locked all of

the fire escape doors and abandoned the building. Fire alarms sounded and lights flashed

for approximately six hours, but prison officials failed to respond to the alarms. Griffin

also states that inmates were screaming, urinating and defecating all over the bathrooms

throughout this period. As a result, he slipped in a pool of urine on the floor and another

inmate stepped on him. Griffin asserts that he feared for his life during the incident, and

that he now suffers from insomnia. Under ordinary conditions, Griffin may have been

able to establish that slipping in a pool of urine on a restroom floor posed a substantial

risk. Because he concedes that this was an emergency blackout due to a power failure,

however, we conclude that his pleadings are insufficient to show that the officers were

deliberately indifferent.

       The District Court also did not err in holding that Griffin failed to state a claim

based on ETS exposure. Liability based on exposure to ETS requires proof of (1)

exposure to unreasonably high levels of ETS contrary to contemporary standards of

decency; and (2) deliberate indifference by the authorities to the exposure to ETS.

Helling v. McKinney, 509 U.S. 25, 35 (1993). Griffin alleges that, over a period of

twenty months, he has been exposed to ETS in inadequately ventilated restrooms. He

also claims that every time he goes to any prison restroom, he finds at least eight to ten

inmates smoking there. Griffin does not allege that he was exposed to levels of ETS that

pose an unreasonable risk of damage to his future health. Compare, e.g., Helling, 509


                                              3
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

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’”).

       For the foregoing reasons, we will affirm.




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