The opinion of the court was delivered by: Hon. Gordon J. Quist
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
The Court has before it Plaintiff's objection to the report and recommendation issued January 19, 2010, in which Magistrate Judge Brenneman recommended that Defendants' motion for summary judgment be granted. Defendants have also filed an objection, limited to the magistrate judge's recommendation that Defendants waived the issue of qualified immunity. Plaintiff alleges an environmental tobacco smoke ("ETS") claim under the Eighth Amendment that Defendants were deliberately indifferent to his serious medical needs by placing him in a housing unit with smokers and by failing to enforce the MDOC's no-smoking policy and to remove smoking prisoners from the non-smoking designated housing units. Plaintiff also alleged that Defendants Prelesnik and Lovett retaliated against him by "transferring him to a worse living environment where smoke hovers."
With regard to Plaintiff's Eighth Amendment ETS claim, the magistrate judge noted that Plaintiff alleged both a "present injury claim" and a "future injury claim." The magistrate judge concluded that Plaintiff's present injury claim fails because Plaintiff's evidence was insufficient to meet the objective component of that claim. The magistrate judge observed that although Plaintiff's medical records show that he experienced some symptoms from exposure to ETS, the evidence did not show that his symptoms were serious or that his asthma was difficult to control. The magistrate judge also concluded that Plaintiff failed to establish his future injury claim because Plaintiff presented no evidence showing that he was being exposed to unreasonably high levels of ETS or that the risk that he experienced violated contemporary standards of decency. In addition, the magistrate judge concluded that the MDOC's adoption of a policy prohibiting smoking within all MDOC buildings and within 100 feet of any entrance to such buildings demonstrated that MDOC officials were not deliberately indifferent to ETS.
With regard to Plaintiff's retaliation claim, the magistrate judge concluded that Plaintiff presented sufficient evidence to establish that he engaged in protected conduct and that the actions Defendants Prelesnik and Lovett took were motivated by that protected conduct. However, the magistrate judge concluded that the alleged adverse action -- a transfer from one correctional facility to another -- did not constitute an adverse action because such a transfer is not considered sufficiently adverse to deter a prisoner of ordinary firmness from exercising his First Amendment rights.
Finally, the magistrate judge concluded that while Defendants are entitled to summary judgment on the merits of Plaintiff's claims, Defendants are not entitled to qualified immunity because they waived the issue by failing to sufficiently develop the argument in their brief.
After conducting a de novo review of the report and recommendation, the parties' objections, and the pertinent portions of the record, the Court concludes that the report and recommendation should be adopted with regard to Plaintiff's claims. Because a ruling on qualified immunity is unnecessary, the Court will not adopt the magistrate judge's recommendation on the qualified immunity defense.
Plaintiff objects only with regard to the magistrate judge's conclusion that Plaintiff's present injury claim must be dismissed. Plaintiff contends that he presented sufficient evidence to establish both the objective component and the subjective component of his claim. However, the magistrate judge concluded only that Plaintiff failed to meet the objective prong of a present injury ETS claim. In fact, in a footnote, the magistrate judge correctly noted that Defendants' argument on the subjective prong of Plaintiff's claim was limited to an unsupported assertion that they were subjectively unaware of Plaintiff's serious medical need for a smoke-free environment. (Report & Recommendation at 7 n.2.)
In order to prevail on an Eighth Amendment claim based upon exposure to ETS, a plaintiff must satisfy a two-part inquiry that involves both an objective and a subjective component. Helling v. McKinney, 509 U.S. 24, 35-36, 113 S.Ct. 2475, 2481-82 (1993). As noted, we are concerned here only with the objective prong.
To establish the objective inquiry, a prisoner must show that his medical needs are "sufficiently serious." Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992). Exposure to ETS which causes "mere discomfort or inconvenience" is insufficient to support an Eighth Amendment claim. Id. See also Talal v. White, 403 F.3d 423, 426 (6th Cir. 2005). "The issue then is whether the prisoners' pre-existing medical conditions are such that exposing them to ETS represents a serious health threat or constitutes mere discomfort." Hunt, 974 F.2d at 735.
The magistrate judge noted that Plaintiff has been diagnosed with asthma, a condition that both constitutes a serious medical condition and requires that Plaintiff avoid ETS. See Taylor v. Prelesnik, No. 1:06-CV-898, 2008 WL 2199695, at *2 (W.D. Mich. May 23, 2008). The magistrate judge observed, however, that Plaintiff's records failed to show that Plaintiff suffered from serious symptoms or that his asthma was difficult to control. Based upon its review of the evidence, the Court concurs with the magistrate judge that Plaintiff has not shown that his exposure to ETS posed a serious health threat sufficient to establish a claim for present injury. The evidence shows that Plaintiff's symptoms were "relatively minor" and that Plaintiff was able to manage them with the use of his inhalers and other medication.
Plaintiff argues that the magistrate judge erred because he failed to consider evidence that Plaintiff was hospitalized in June of 2006 due to exposure to ETS. Even so, nothing in Plaintiff's medical records indicates the circumstances of the hospitalization or shows that medical restrictions were imposed upon Plaintiff following the hospitalization. In fact, records from Plaintiff's October 25, 2006, physical exam show that Plaintiff's symptoms had decreased since his trip to the hospital, possibly due to cooler temperatures. Therefore, the Court concludes that Plaintiff's hospitalization on one occasion does not undermine the magistrate judge's conclusion that Plaintiff failed to demonstrate the objective prong of his ETS claim.
Plaintiff also contends that the Sixth Circuit's decisions in Talal v. White, 403 F.3d 423 (6th Cir. 2005), and Palacio v. Hofbauer, 106 F. App'x 1002 (6th Cir. 2004), support his claim because those cases are similar to this case and in both instances the courts held that the plaintiffs stated an Eighth Amendment claim. Plaintiff's reliance on those cases is misplaced, however, because they merely held that the plaintiffs stated claims that were sufficient to survive a motion to dismiss under Rule 12(b)(6). In this case, Plaintiff's ...