The opinion of the court was delivered by: CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Before the Court in the above-entitled case is the Defendants' Motion to Dismiss, or in the alternative for Summary Judgment ("Defendants' Motion"), and the Plaintiff's Opposition thereto. Upon careful consideration of the parties' pleadings and the applicable law with respect thereto, the Court shall GRANT the Defendants' Motion to Dismiss.
Plaintiff, an inmate incarcerated at the Medium Security Facility of the Lorton Correctional Complex, brings the above-entitled cause of action pro se and in forma pauperis alleging that the Defendants have violated his constitutional rights in addition to District of Columbia law. Plaintiff asserts five discrete claims.
First, Plaintiff alleges that the Defendants' actions have exposed him to unreasonable levels of Environmental Tobacco Smoke ("ETS") in violation of the Eighth Amendment bar against cruel and unusual punishment and District of Columbia law. Second, Plaintiff alleges that he was denied his Due Process rights when certain personal property of his was shipped to his home at his expense by prison officials, who, in turn, allegedly failed to provide him with an inventory of the items shipped. Plaintiff also contends that these actions violated District of Columbia law. Third, Plaintiff alleges that he has been denied an opportunity to participate in a drug treatment program in violation of the Equal Protection Clause. Fourth, Plaintiff claims that the Defendants retaliated against him because he has filed the instant Complaints by allegedly refusing to enroll him in the drug program, process his inmate grievance form properly, or transfer him to a minimum security facility. Fifth, Plaintiff claims that he was denied his Due Process rights when the Defendants allegedly failed to process his inmate grievances.
A. Plaintiff Fails to State a Claim upon which Relief can be Granted.
For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted, all factual allegations contained in the complaint are assumed to be true, and all doubts and ambiguities are to be resolved in the complainant's favor. Doe v. United States Dep't of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C. Cir. 1985). Moreover, a pro se complaint must be liberally construed, granting the complainant "the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 199 U.S. App. D.C. 23, 617 F.2d 605, 608 (D.C. Cir. 1979) (quoting Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969)). A pro se complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980).
1. Plaintiff's Environmental Tobacco Smoke Claim.
Plaintiff alleges that, while housed at Unit 4-C of the Medium Security Facility, he was exposed to unreasonably high levels of environmental tobacco smoke (ETS), in violation of the Eighth Amendment and D.C. Code §§ 7-100 and 8-262. Complaint 94-2490. Plaintiff seeks declaratory and injunctive relief, $ 80,000 in compensatory damages, $ 40,000 in punitive damages against each of the Defendants, and free medical treatment for the rest of his life. Id. Because Plaintiff fails to state a cognizable Eighth Amendment claim, and because the Court declines to exercise its supplemental jurisdiction over Plaintiff's claims under District of Columbia law, the Court will dismiss Plaintiff's claim regarding his alleged exposure to ETS.
To state a claim under the Eighth Amendment that the right to be free from cruel and unusual punishment has been violated, an inmate complaining of prison conditions must allege facts that, if true, would satisfy both prongs of a bifurcated test. First, a plaintiff must allege that, objectively, conditions are or were serious enough to be considered cruel and unusual. Wilson v. Seiter, 501 U.S. 294, 298-99, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). Second, from a subjective point of view, the plaintiff must allege that the defendants acted with a sufficiently culpable state of mind. Id.
The Supreme Court analyzed an ETS claim under the Eighth Amendment in a case where an inmate brought a section 1983 action against prison officials challenging his placement with an inmate who smoked five packs of cigarettes per day. Helling v. McKinney, 125 L. Ed. 2d 22, 509 U.S. , 113 S. Ct. 2475 (1993). The inmate claimed that involuntary exposure to his cell mate's ETS created an unreasonable risk to his health, thus subjecting him to cruel and unusual punishment by jeopardizing his health. Id.
With regard to the subjective component of an Eighth Amendment claim, the Supreme Court observed that the prison officials' attitudes and conduct must evince "deliberate indifference" to the unreasonable risk posed by the inmate's exposure to ETS. Id. "Deliberate indifference" is the equivalent of subjective recklessness, conscious disregard of a substantial risk of serious harm. Farmer v. Brennan, 128 L. Ed. 2d 811, U.S. , 114 S. Ct. 1970, 1979-80 (1994). Accordingly, a prison official must actually know of and disregard an excessive risk to inmate health or safety. Id. at 1980-82, 1984. The Helling Court noted that the plaintiff's ability to offer such proof on remand would be questionable given that the prison officials had since adopted a formal smoking policy. Helling, 113 S. Ct. at 2482.
Plaintiff in the instant case fails to satisfy the objective prong of a cognizable Eighth Amendment claim. While Plaintiff states in conclusory terms that he has been exposed to "unreasonably high levels of environmental tobacco smoke [which cause him to] suffer from certain health ailments [and] which seriously threaten his future health," Complaint 94-2490 at P 15, Plaintiff does not present any scientific or statistical evidence establishing a likelihood that an injury to his health will be caused by the exposure nor does he allege that the risk of harm is so grave that it "violates contemporary standards of decency to expose anyone to such a risk" or assert any factual allegations from which the Court could draw such a conclusion. Helling, 113 S. Ct. at 2482; see Note, Second Hand Smoke as Cruel and Unusual Punishment: Helling v. McKinney: The Insurmountable Burden of Proof and the Role of the Court, 3 GEO. MASON IND. L. REV. 257, 272-78 (1994) (arguing that Helling imposes a standard of proof that is insurmountable because of the inherent scientific uncertainties surrounding ETS and causation).
Further, the facts of the present case are distinguishable from those in Helling. While the plaintiff in Helling was exposed to ETS constantly due to his involuntary placement with a cell mate who smoked five packs of cigarettes per day, Plaintiff does not allege any constant exposure to ETS and none of the allegations in the Complaint concern his cell. Rather, Plaintiff alleges only that various unnamed inmates and prison officials smoke "in the TV room, games room, and the letter writing room." Complaint 94-2490 at P 17. These allegations do not objectively state an Eighth Amendment claim upon which relief can be granted. See McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1995) (inmate allegations of exposure to asbestos-covered pipes directly outside his cell for period over ten months did not state a cognizable Eighth Amendment claim; complaint did not allege facts sufficient to establish that he was exposed to unreasonably high levels of asbestos).
Plaintiff's Complaint also fails to satisfy the subjective prong of a cognizable Eighth Amendment claim -- that the attitudes and conduct of officials evince "deliberate indifference" to the unreasonable risk to inmate health or safety. Plaintiff faces the difficulty in proving "deliberate indifference" noted in Helling because the Medium Security Facility in which plaintiff is housed has implemented District of Columbia Department of Corrections Order 6060.1, and has promulgated Medium Security Facility Division Operations Procedure ("DOP") 6060.1 to regulate smoking at the facility.
See Defendants' Motion in 94-2770 (filed Jan. 10, 1995) at Exh. 1, 2.
Plaintiff asserts that the "defendants . . . acted with a sufficiently culpable state of mind." Complaint 94-2490 at PP 20, 21. He alleges that certain of the Defendants have failed to enforce the smoking restrictions and he submits seventeen affidavits by other inmates to that effect. Complaint 94-2490 at PP 13, 14, 17, Attachments. However, these conclusory statements and vague allegations do not establish that the Defendants acted with a sufficiently culpable state of mind. See Helling, 113 S. Ct. at 2480. That the restrictions are not being fully enforced is not enough to establish deliberate indifference. See Whitley v. Albers, 475 U.S. 312, 318, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986) (obduracy and wantonness rather than inadvertence or mere negligence characterize conduct prohibited by Eighth Amendment).
To state a claim under the Eighth Amendment, Plaintiff must, at minimum, allege facts sufficient to establish that the Defendants possessed a total unconcern for his welfare in the face of serious risks. See Helling, 113 S. Ct. at 2481-82. Plaintiff's Complaint falls short of that standard. Cf. Beauchamp v. Sullivan, 21 F.3d 789, 790 (7th Cir. 1994) (opining that prison officials unlikely to be violating Constitution by forbidding smoking within prison buildings but allowing smoking in outdoor recreation areas). Accordingly, because Plaintiff fails to satisfy the bifurcated test necessary to state a cognizable claim under the Eighth Amendment for cruel and unusual punishment, the Court will GRANT the Defendants Motion to Dismiss that claim.
In addition to the alleged violation of the Eighth Amendment, Plaintiff claims that the Defendants violated District of Columbia law. With regard to the alleged ETS violation, Plaintiff seeks relief under D.C. Code. §§ 7-100 and 8-262. Complaint 94-2490 at PP 21-22. Because Plaintiff's claims are more appropriately pursued in the District of Columbia Superior Court, and because the Court will dismiss the claims over which the Court had original jurisdiction, the Court declines to exercise its supplemental jurisdiction over Plaintiff's state law claims. 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . (3) the district court has dismissed all claims over which it had original jurisdiction"); see Fields v. District of Columbia Dep't of Corrections, 789 F. Supp. 20, 23 (D.D.C. 1992) (declining to retain pendent jurisdiction or to issue a declaratory judgment regarding pendent claim under D.C. Code § 24-442); Charles v. Kelly, 790 F. Supp. 344, 349 (D.D.C. 1992) (same); Smith-Bey v. District of Columbia, 546 F. Supp. 813, 814 (D.D.C. 1982) (same). Plaintiff's claims under District of Columbia law regarding his alleged exposure to ETS shall accordingly be DISMISSED, WITHOUT PREJUDICE to refiling in the District of Columbia Superior Court.
2. The Decision by Prison Officials to Ship Plaintiff's Personal Property to Plaintiff's Home and their Alleged Refusal to Provide him with an Inventory List Therefor.
Plaintiff alleges that on or about July 19, 1994, prison officials removed all of his personal property from his cell and shipped it to his home, at his expense and without a hearing. Complaint 94-2558; Complaint 94-2770. He claims that, despite his request for an inventory list of the property shipped, none was provided. Complaint 94-2770 at PP 13, 14, and 19. Plaintiff alleges that these actions violated his Equal Protection, Due Process, and Eighth Amendment rights. Complaint 94-2558 at PP 59-62; Complaint 94-2770 at P 28. Plaintiff also alleges that the Defendants violated D.C. law and regulations of the D.C. Department of Corrections with respect to the decision by prison officials to ship Plaintiff's personal property to his home and the alleged failure to provide an inventory list. Complaint 94-2558 at PP 63-66.
The facts leading up to the shipment of Plaintiff's property are straightforward. Plaintiff worked on a canteen truck at the Lorton Facility. Complaint 94-2558 at P 17. On July 15, 1995, a memorandum was sent from Defendant Gadikian, a unit manager at the Lorton Facility, to Defendant Giles, a deputy warden, disclosing that a reliable anonymous source had informed Gadikian that Plaintiff was stealing goods from the truck and reselling them to inmates. See Defendants' Motion at Exh. 4. On July 19, 1994, the Program Review board recommended that the contents of Plaintiff's locker be inventoried and excess property shipped home. See Defendants' Motion at Exh. 5. Plaintiff acknowledged the recommendation and thereafter his excess property was shipped home. Id. He was billed $ 74.30 for the shipment. Complaint 94-2558 at P 52; Complaint 94-2770 at P 7.
a. Plaintiff's Equal Protection Claim
Plaintiff claims that his rights under the Equal Protection Clause were violated when he was allegedly singled out for harsher treatment than that accorded similarly situated prisoners in that "he was not allowed to keep the amount of property that all prisoners can have." See Complaint 94-2558 at PP 59-60. Because Plaintiff does not set forth any cognizable claim under the Equal Protection Clause the Court will GRANT the Defendants' Motion to Dismiss Plaintiff's claim thereunder.
Essentially mandating "that all persons similarly situated should be treated alike," Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985), the Equal Protection Clause "forbids the establishment of laws which arbitrarily and unreasonably create dissimilar classifications of individuals when, looking to the purpose of those laws, such individuals are similarly situated." Williams v. Field, 416 F.2d 483, 486 (9th Cir. 1969); see also Muckway v. Craft, 789 F.2d 517, 519 (7th Cir. 1986) ("The equal protection clause 'protects against intentional invidious discrimination by the state against persons similarly situated.'" (quoting Ciechon v. City of Chicago, 686 F.2d 511 (7th Cir. 1982))). It also forbids unequal enforcement of valid laws, where such unequal enforcement is the product of improper motive. Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 ...