United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This matter is before the court on Defendant Fred Britten's ("Britten") Motion for Summary Judgment (Filing No. 77). For the reasons explained below, Britten's motion will be granted.
Emilio Pavon ("Pavon" or "Plaintiff") was incarcerated at the Tecumseh State Correctional Institution ("TSCI") when he filed this action on April 3, 2013. Britten, the only remaining defendant in this case, was warden of the TSCI at all times relevant to this action. Pavon brought this suit under 42 U.S.C. § 1983 against Britten for violations of his Eighth Amendment rights. Specifically, Pavon claimed prison staff failed to protect him from exposure to secondhand smoke and vapors from cleaning chemicals while he was incarcerated at the TSCI.
Britten filed the summary-judgment motion at issue here on March 5, 2015. He argued the evidence clearly shows that no genuine issue of material fact exists and he is, therefore, entitled to judgment as a matter of law. ( See Filing Nos. 77, 78, and 79.) Britten submitted some evidence and briefing under provisional seal in support of the motion (Filing Nos. 75 and 76), but these specific filings were not served on Pavon and, therefore, the court did not consider them in ruling on Britten's summaryjudgment motion. Pavon has opposed the unsealed portions of Britten's summaryjudgment motion. ( See Filing Nos. 80, 81, and 82.)
II. SUMMARY JUDGMENT STANDARD
"Summary judgment is proper if 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 judgment as a matter of law." Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After the movant has demonstrated the absence of a genuine issue of material fact, the nonmovant must respond by submitting evidence that sets out specific facts showing that there is a genuine issue for trial. Id. In doing so, the nonmovant must substantiate his allegations with "sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy." Moody v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Id. "The basic inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks and citations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at 1042).
III. UNDISPUTED MATERIAL FACTS
1. Pavon was incarcerated at the TSCI at all times relevant to this action. (Filing No. 1 at CM/ECF pp. 2, 4-5, Complaint.)
2. Britten was warden of the TSCI at all times relevant to this action. (Filing No. 1 at CM/ECF p. 4, Complaint.)
3. Pavon was housed in Housing Unit 2D within the TSCI from 2007 to 2009. (Filing No. 1 at CM/ECF pp. 4-5, Complaint.)
4. There were no tobacco violations in TSCI's Housing Unit 2D between 2007 and 2009. (Filing No. 79-15 at CM/ECF p. 1, Houseman Aff.)
5. Pavon was housed in Special Management Unit B within the TSCI from 2010 to 2013. (Filing No. 1 at CM/ECF p. 5, Complaint.)
6. There was one tobacco violation in Special Management Unit B within the TSCI between 2010 and 2013. (Filing No. ...