Demetrius Brown v. U.s. Justice Department

BLD-130
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3995
___________
DEMETRIUS BROWN,
Appellant
v.
U.S. JUSTICE DEPARTMENT;
BUREAU OF PRISONS;
FCI MCKEAN;
JOHN J. LAMANNA, Warden;
D. SCOTT DODRILL, Regional Director;
HARLEY G. LAPPIN, Director of BOP;
DR. NEWTON E. KENDING, Medical Director
__________________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 04-cv-00379)
District Judge: Sean J. McLaughlin
__________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 14, 2008
Before: McKEE, RENDELL and SMITH, Circuit Judges
(Filed: April 1, 2008)
_________
OPINION OF THE COURT
_________

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As the parties are familiar with the facts, we will only refer to them as they become1
necessary to our analysis.
2
PER CURIAM
Demetrius Brown, a federal prisoner formerly housed in the Federal Correctional
Institution at McKean (“FCI–McKean”), sued the “U.S. Justice Department”; the Bureau
of Prisons (“BOP”); FCI–McKean; John Lamanna, the former warden of FCI–McKean;
Scott Dodrill, the Regional Director of the BOP; Harley Lappin, the Director of the BOP;
and Dr. Newton Kendig, the Medical Director of the BOP. In brief, he alleged that
exposure to environmental tobacco smoke (“ETS”) in FCI–McKean violated his rights
under the Eighth and Fourteenth Amendments. He invoked the Federal Tort Claims Act1
(“FTCA”) and Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
After Brown filed an amended complaint, Defendants filed a motion to dismiss or,
in the alternative, a motion for summary judgment. Brown opposed their motion and
sought to file a second amended complaint. The Magistrate Judge recommended that
Defendants’ motion be granted and Brown’s motion to file a second amended complaint
be denied as futile. Over Brown’s objections, the District Court adopted the Magistrate’s
report and recommendation. Brown appeals, and Defendants/Appellees move for
summary action.
We grant the motion for summary action; we will summarily affirm the District

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Court because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.
We exercise plenary review over the District Court’s ruling on Defendants’ motion.
See Abramson v. William Patterson College, 260 F.3d 265, 276 (3d Cir. 2001); Gould
Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Nami v. Fauver, 82 F.3d
63, 65 (3d Cir. 1996). We review the District Court’s decision to deny leave to amend for
abuse of discretion. See Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.
2002).
The District Court properly dismissed any Bivens claims against the “U.S. Justice
Department,” the BOP, and FCI–McKean. See FDIC v. Meyer, 510 U.S. 471, 485
(1994). Similarly, any FTCA claims failed against the named Defendants, as the only
proper defendant in an FTCA suit is the United States itself. See 28 U.S.C. § 2671
et seq..
The District Court properly granted summary judgment in favor of the remaining
Defendants on Brown’s Eighth Amendment claims. 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). Brown alleged that
Defendant Lamanna implemented the smoking policy that resulted in his ETS exposure;
Defendant Dodrill allowed the policy to stand despite his “authority to disapprove such”;
Defendant Kendig “failed to curb non-compliance for indoor smoking beyond those times

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Although Brown was an inmate of FCI–McKean from July 1997 to October 2004, and2
discusses his experiences at FCI–McKean throughout that time period, he limited his
claims to those that arose after December 28, 2002, as the District Court noted. In any
event, as Defendants argued, the applicable statutes of limitations barred any of Brown’s
claims accruing before that date.
Also, his medical records do not reveal any past or current complaints related to ETS3
exposure.
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specified by policy”; and Defendant Lappin “allowed smoking Bureau-wide” despite an
Executive Order declaring that smoking “cease and desist” in all federal buildings. In his
response to Defendants’ motion, he contended that inmates smoked in the tier of cells
reserved for non-smoking inmates and that staff broke rules against smoking by smoking
“in offices, in front of door ways, air ducts, and walkways where inmates were forced to
pass.” He also claimed that there was virtually no enforcement of the smoking policy.2
As the District Court concluded, despite Brown’s general claims, he did not
specify how he was exposed to levels of ETS that pose an unreasonable risk of damage to
his future health. Compare, e.g., Helling, 509 U.S. at 35 (holding that bunking with a3
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

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Despite filing a motion to amend (his “motion to file third amended complaint”),4
Brown advanced an argument in his objections to the report and recommendation that he
had a right to file his second amendment as a matter of course. However, Rule 15 of the
Federal Rules of Civil Procedure does not support his contention. See Fed. R. Civ. P.
15(a).
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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’”).
See also Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001) (“The Eighth Amendment
does not require prisons to provide prisoners with more salubrious air, healthier food, or
cleaner water than are enjoyed by substantial numbers of free Americans.”)
The District Court also properly denied Brown’s motion for leave to amend his
complaint a second time because amendment would have been futile. Leave to amend4
should be granted unless amendment is futile or inequitable. See Grayson, 293 F.3d at
106.
In motion to amend, Brown sought to add the United States as a defendant.
Although the United States is the only proper defendant to an FTCA suit, the United
States retains immunity from liability for acts or omissions of its employees based on
their exercise or performance of discretionary functions and duties. See 25 U.S.C.
§ 2680(a). To determine if the discretionary function exception applies, a court must first
determine if the challenged conduct involves an “‘element of judgment or choice.’”
See Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000) (citing United States v.
Gaubert, 499 U.S. 315, 322-23 (1991) and Berkovitz v. United States, 486 U.S. 531, 536

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He also described a “program of retaliation” at FCI–Raybrook “instituted by the U.S.5
Justice Department” and the Central Office of the BOP. However, any Bivens or
FTCA claims against those entities could not go forward, for the reasons given above. He
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(1988), and noting that there is no element of judgment or choice if “‘a federal statute,
regulation, or policy specifically prescribes a course of action for an employee to
follow’”). If the challenged conduct involves an element of judgment, a court must go on
to consider “‘whether that judgment is of the kind that the discretionary function
exception was designed to shield.’” Id. (citations omitted).
The pertinent federal regulations instruct the BOP to restrict areas where smoking
is permitted at its facilities. See 28 C.F.R. § 551.160 et seq.. For most of Brown’s stay at
FCI–McKean, and while Defendant LaManna was the warden, prison wardens retained
discretion under the regulations to designate indoor as well as outdoor smoking areas. As
the District Court explained (albeit with a more detailed recitation of the specifics of the
regulations), the explicit grant of discretion means that an element of judgment or choice
was involved in the challenged conduct. We agree with the District Court that the grant
of discretion and the stated policy considerations (relating to improving the air and
protecting the health and safety of staff and inmates, see 28 C.F.R. § 551.160) make the
judgment the kind that the discretionary function exception is meant to shield.
See Gaubert, 499 U.S. at 322-24.
Allowing Brown’s other proposed claims, that his transfer from FCI–McKean to
FCI-Raybrook was retaliatory and that he was discriminated against under the Americans5

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also alleged that he was housed in FCI–Raybrook in a six-person cell with three prisoners
who smoked continuously over a period of eight months. He does not, however, connect
his FCI–Raybrook ETS claim to the Defendants subject to a Bivens action in this suit.
Although his references to the Equal Protection clause in his prolix amendment may be
merely in support of his ADA cause of action, he may also raise an Equal Protection
claim, namely that prison staff have greater restrictions on where they can smoke than
prison inmates do. He believes his rights are violated by this policy because it means that
non-smoking staff members are better protected against ETS than non-smoking inmates.
However, a rational reason for this policy, for instance, allowing prisoners, who cannot
smoke outside the prison grounds like staffers can, a place to smoke, satisfies our inquiry
into the matter. In any event, it does not necessarily seem plausible that staffers could
better avoid the discrete areas where smoking is allowed than other prisoners could.
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with Disabilities Act (“ADA”) (as a non-smoking inmate whose sexually transmitted
disease worsened because of ETS exposure), would have been futile because he did not
exhaust them in the prison’s administrative-remedy scheme. A prisoner who challenges
prison conditions must exhaust available administrative remedies before filing suit in
federal court. See 42 U.S.C. § 1997e; Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006);
Booth v. Churner, 532 U.S. 731, 739 (2001). Defendants put forth evidence that Brown
did not exhaust his administrative remedies for his claims of retaliatory transfer and an
ADA violation. We agree with the District Court that Brown’s evidence that he
exhausted a claim about a transfer related to his grievance about a decision to deny him a
transfer to a lower security institution (more than two years after he was transferred from
FCI–McKean), which did not put Defendants on notice of a retaliatory transfer claim.
We also agree with the District Court that Brown’s mention that “cancer has had the
opportunity to develop” in relation to his ETS claim in the administrative proceedings

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was insufficient to alert Defendants to an ADA (or Rehabilitation Act) claim based on the
exacerbation of a sexually transmitted disease.
In conclusion, the District Court properly granted Defendants’ motion to dismiss
or, in the alternative, motion for summary judgment, and denied Brown’s motion for
leave to amend his complaint. Accordingly, we grant the motion for summary action, and
we will affirm the District Court’s judgment.

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