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Smoking
Monthly Law Journal Article: Legal Issues Pertaining to Smoking in Correctional Facilities, 2008 (1) AELE Mo. L.J. 301.
A Native American inmate claimed to
have contracted Hepatitis C while participating in a communal pipe-smoking
ceremony at a prison. He sued the Executive Director of the state prison agency
for violating his Eighth Amendment right to be free from cruel and unusual
punishment by failing to protect him from the risk of contracting communicable
diseases, including Hepatitis C. A federal appeals court noted that there was
no policy requiring the plaintiff to participate in the communal pipe ceremony,
and he did so voluntarily based on his religious beliefs. He therefore failed
to state a claim for an Eighth Amendment violation. Legate v. Livingston,
#15-40079, 2016 U.S. App. Lexis 9106 (5th Cir.).
When a prisoner
performed a one-day work assignment of construction work in the crawl space of
a parole office near the prison, he was charged with and then punished
following a disciplinary hearing for attempting to traffic tobacco. His
punishment included the loss of 60 days of good time credit, and demotion in
his credit class, making it more difficult for him to earn good time credits.
He was also assigned to 20 extra hours of work and denied commissary privileges
for 25 days. The evidence in the hearing consisted of a guard's statement that
various items of tobacco were found in the crawl space the prisoner had been
assigned to work in. A federal appeals court reversed a finding that the
evidence, while "scanty," was sufficient to establish constructive
possession of tobacco. The appeals court ruled that the prisoner had been
convicted without evidence of guilt, violating his right to due process of law.
Austin v. Pazera, #14-2574, 2015 U.S. App. Lexis 2608 (7th Cir.).
A federal appeals court upheld a ruling that
South Dakota Native American inmates had met their burden that a prison ban on
tobacco use substantially burdened their religious freedom in violation of the
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. 2000cc-1(a). The fact that some Native Americans who practice the Lakota
religion would accept red willow bark as an alternative to tobacco did not
alter the ruling. Even if it were shown that the ban furthered compelling
interests in order and security, it was not the least restrictive means of
doing so. The trial court's remedial orders, limiting the amount of tobacco
used in activities, did not go further than needed to remedy the rights
violation, and therefore complied with the Prison Litigation Reform Act under
18 U.S.C.S. § 3626(a)(1)(A). Native American Council v. Weber, #13-2745, 2014
U.S. App. Lexis 7766 (8th Cir.).
A federal appeals court upheld a ruling that
South Dakota Native American inmates had met their burden that a prison ban on
tobacco use substantially burdened their religious freedom in violation of the
Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. 2000cc-1(a). The fact that some Native Americans who practice the Lakota
religion would accept red willow bark as an alternative to tobacco did not
alter the ruling. Even if it were shown that the ban furthered compelling
interests in order and security, it was not the least restrictive means of
doing so. The trial court's remedial orders, limiting the amount of tobacco
used in activities, did not go further than needed to remedy the rights
violation, and therefore complied with the Prison Litigation Reform Act under
18 U.S.C.S. § 3626(a)(1)(A). Native American Council v. Weber, #13-2745, 2014
U.S. App. Lexis 7766 (8th Cir.).
A prisoner failed to show that by smoking
in his housing unit correctional employees acted with deliberate indifference
to any existing serious medical condition of which they had been made aware.
Further proceedings were ordered, however, on the prisoner's claim that such
smoking exposed him to an unreasonable risk of future harm. All claims against
a prison doctor concerning the smoking were properly rejected, in the absence
of any evidence that the prisoner had complained to him about it. Brown v.
DiGuglielmo, #09-3494, 2011 U.S. App. Lexis 5752 (Unpub. 3rd Cir.).
A prisoner failed to show that his occasional exposure
to environmental tobacco smoke (ETS) in an outdoor recreational yard as a
result of guards smoking rose to the level required to impose liability. This
requires: "(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." Turner v. Leggett, #10-4654, 2011
U.S. App. Lexis 7095 (Unpub. 3rd Cir.).
While there was evidence that the plaintiff
prisoner had asthma, the record did not support his argument that his level of
exposure to environmental tobacco smoke (ETS) in Michigan state prisons
amounted to a serious threat to his health in violation of the Eighth Amendment,
as opposed to "mere discomfort." His asthma was "relatively
minor," and could be managed through the use of an inhaler and other
medication. There also was insufficient evidence to support his claim that he
was transferred to another facility, with allegedly worse ETS, in retaliation
for complaining about ETS. Jones v. Caruso, #10-1515, 2011 U.S. App. Lexis
8729; (Unpub. 6th Cir.).
A prisoner filed a grievance against a
correctional officer for allegedly smoking at an entrance to a prisoner housing
unit, in violation of Michigan law and prison regulations. He claimed that the
officer, in retaliation, came to his cell, despite having no duties there, and
ordered him to turn off his television, issuing him a misconduct slip when he
refused to do so. He was later placed in "Top Lock" for 12 days, lost
8 days' wages, and had four points added to his institutional record, all for
disobeying the order, despite the officer's admission that he had the right to
watch the television. These sanctions reduced his ability to move to a better
job, to obtain placement in a lower security facility, and to be paroled. Based
on these facts, a federal appeals court held that the prisoner could proceed
with his First Amendment retaliation claim. Taylor v. Lantagne, #08-1696, 2011
U.S. App. Lexis 7107 (Unpub. 6th Cir.).
A New Jersey inmate claimed that the staff and
administrator of the facility where he was incarcerated failed to adequately
address his exposure to environmental tobacco smoke (ETS), resulting in him developing
respiratory ailments, such as chest pain and recurrent asthma. He argued that
there was "rampant smoking" by both inmates and staff at the
facility, despite state law and a smoking policy. The appeals court found that
the prisoner had failed to establish deliberate indifference on the part of the
defendants. An institutional smoking policy aimed at minimizing the risks posed
to nonsmokers by passive inhalation of ETS had been in place for years, and
citations had been issued for its violation. These responses, as well as the
responses of staff members to the plaintiff's complaints, indicated
"attentiveness to the policy and awareness of and disciplining of
violators—if not necessarily total success in enforcement." Slaughter v.
Rogers, #10-2911, 2010 U.S. App. Lexis 21219 (Unpub. 3rd Cir.).
A prisoner transferred to a new facility filed
"numerous formal grievances" concerning the conditions of his
confinement, as well as grievances concerning the denials of those grievances.
Finally, he filed a civil rights lawsuit against sixteen correctional
employees, claiming that they had engaged in unlawful retaliation against him
for protected conduct, such as pursuing his grievances and a prior lawsuit. The
retaliation allegedly consisted of denying him proper housing, denying him the
non-smoking, compatible cellmates he requested, failing to properly investigate
or adjudicate his grievances, failing to provide him with required program
services, and failing to provide institutional support for a favorable parole
recommendation. He later added claims that one defendant also retaliated
against him by firing him from inmate employment, preventing him from receiving
outside work clearance, denying him access to mandatory program services, and
having his typewriter improperly confiscated. Upholding summary judgment for
the defendants, a federal appeals court found that the prisoner had failed to
produce any evidence, beyond his "bare assertions," that any of the
adverse actions taken against him were the result of unlawful retaliation. The
denials of housing and cellmate requests, in particular, were found to be based
on legitimate penological reasons. The prisoner was, in fact, transferred to a
non-smoking unit, but was unsatisfied because some prisoners were violating the
policy by sneaking cigarettes in. His two requests, that he be moved away from
harassing cellmates and housed in a non-smoking unit, were essentially granted.
The mere failure to allow the plaintiff to choose his own cellmates was not an
action adverse enough to deter a person of ordinary firmness from exercising
his constitutional rights. The denial of support for the prisoner's parole was
based on his failure to fully accept responsibility for his crime, which
involved traveling across state lines to have sexual relations with an underage
girl. His termination from a job as a prison janitor occurred after his prior
job as a "block runner" was discontinued, and was based on a poor
performance evaluation and inappropriate demeanor. The prisoner himself
expressed his wish not to be a janitor, and at one point refused to work. All
other claims were similarly rejected, and in some instances, such as the
confiscation of the typewriter, the prisoner failed to show that the individual
named as the responsible defendant was actually involved in the action.
Alexander v. Fritch, #10-2173, 2010 U.S. App. Lexis 20679 (Unpub. 3rd Cir.).
An Ohio prisoner claimed that the state
correctional authorities were negligent in training and supervising a
corrections officer who allegedly denied him a smoke break in retaliation for
having previously filed complaints against the officer. The court, construing
the prisoner's harassment complaint as seeking damages for intentional
infliction of emotional distress, ruled that any distress suffered from the
denial of a smoke break was not extreme and outrageous as required for such an
award of damages. Further, to the extent that the prisoner claimed that the
officer issued him a conduct report for violation of institutional rules
improperly, the officer's decision was granted a high degree of discretion, so
that the defendant Department was entitled to discretionary immunity. The
evidence showed that the officer was not incompetent so that no claims could be
asserted for negligent hiring, training, or supervision. Duff v. Ohio
Dept, of Rehabilitation and Correction, #2009-02260, 2010 Ohio Misc. Lexis 22
(Ct. of Claims).
A prisoner claimed that he suffered injury from
excessive exposure to second hand tobacco smoke, including nausea, chest pains,
difficulty breathing, headaches, vomiting, and inability to eat, as well as a
mild stroke or heart attack, blurred vision in his left eye, impaired ability
to walk, numbness of his left side, and extreme back pain. He claimed to have
been housed with prisoners who smoked in his cell, and that 35 inmates who
smoked were housed in the area of his cell. He further asserted that existing
no smoking rules were not enforced. The trial court found a genuine issue of
fact as to whether the warden and an assistant supervisor responded in an
adequate way to the plaintiff's verbal and written pleas that they enforce
existing smoking prohibitions. These defendants' motions for summary judgment
were denied on claims related to smoking, but granted on claims concerning
alleged inadequate medical care, since the prisoner could not show that they
were personally involved in any decisions concerning his medical care. Adams v.
Banks, #5:08cv154, 2009 U.S. Dist. Lexis 90189 (S.D. Miss.).
The right to protection against excessive
exposure to environmental tobacco smoke (ETS) is clearly established. A warden
failed to show that a prisoner's purported sensitivity to ETS could not have
been accommodated while still satisfying concerns about security in the
facility. There were factual issues undetermined which made it an error for the
trial court to have granted qualified immunity to the defendant warden. Colon
v. Drew, #08-0033, 2009 U.S. App. Lexis 12135 (Unpub. 2nd Cir.).
Proof that an inmate had a "raspy"
voice was insufficient to show that he had a disability for purposes of a
disability discrimination claim. While his "raspy" voice could impact
the volume of his speech, there was no indication that he was unable to articulate
his words, to communicate with others, or to make himself understood. The court
also rejected his claim that prison employees were deliberately indifferent to
his serious medical needs. The defendants attempted to accommodate his need to
avoid environmental tobacco smoke (ETS), and the prisoner failed to show any
intentional refusal to address the issue. Pritchett v. Ellers, #08-1669, 2009
U.S. App. Lexis 9381 (Unpub. 3rd Cir.).
Supervisory personnel could not be held liable
for failing to see that tobacco using prisoners were placed in separate housing
from other prisoners when there was no evidence of their personal participation
in or encouragement of this practice. They could not be held vicariously liable
for the alleged actions of subordinate personnel. The prisoner was entitled to
proceed, however, on claims against non-supervisory personnel. Carter v.
Wilkinson, #2:05-cv-0380, 2009 U.S. Dist. Lexis 27649 (S.D. Ohio).
A prisoner's exposure to second-hand tobacco
smoke from other prisoner's in an extradition van several times a day for
several days while being transported did not amount to an extreme deprivation
and did not violate his Eighth Amendment rights, despite his claim that the
smoke gave him an allergic reaction, made him feel ill, and "endangered"
him. The prisoner also failed to show that the extradition agent who allowed
the prisoners to smoke acted with deliberate indifference to an known
substantial risk of serious harm. Blackburn v. Colo. Dept. of Corrections,
#09-cv-00168, 2009 U.S. Dist. Lexis 16853 (D. Colo.).
In order to establish a claim based of present
injury from exposure to secondhand tobacco smoke, a prisoner must show both a
serious medical need related to that exposure and deliberate indifference by
prison officials to that need. Even assuming that the plaintiff prisoner in
this case satisfied the first element of this test, he failed to show the
subjective deliberate indifference needed to recover damages. The defendant
warden established clear smoking regulations, and tried to enforce them. The
prisoner's request to be transferred out of a unit where smoking was allowed
was honored. The prisoner himself, following that initial transfer, made no
further requests to be moved because of smoking, and his medical records did
not show any indications of complaints related to excessive exposure to tobacco
smoke, indicating that correctional officials could not have been deliberately
indifferent, since there was insufficient documentation to put them on notice
that there was a problem. Panton v. Nash, #07-4840, 2009 U.S. App. Lexis
5233 (Unpub. 3rd Cir.).
When federal prison officials charged with
enforcing a non-smoking policy concededly did not do so, the federal government
was not entitled to claim the discretionary function exception to liability
under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) in a lawsuit brought
by a prisoner for exposure to an excessive amount of environmental tobacco
smoke and failure to properly ventilate a federal prison. Summary judgment was
still granted for the government, however, since the prisoner failed to show an
actual injury or a cause and effect relationship between the officials' alleged
negligence and an alleged injury. Abuhouran v. U.S.A., No. 07-2465, 2009 U.S.
Dist. Lexis 8623 (E.D. Pa.).
The state of Louisiana was immune, under the
Eleventh Amendment, from a prisoner's lawsuit claiming that his exposure to
occasional second-hand smoke while housed in a non-smoking dormitory aggravated
his bronchitis, causing him to gasp for breath and suffer nausea. Evidence also
showed that violators of the dormitory's non-smoking policy were disciplined,
and that the plaintiff's "sporadic" exposure to second-hand smoke did
not rise to the level of an Eighth Amendment violation. Robinson v. Louisiana,
Civil Action No. 05-1016, 2008 U.S. Dist. Lexis 88604 (M.D. La.).
Prison officials did not act with deliberate
indifference to asthmatic prisoner's complaints about exposure to second-hand
smoke allegedly triggering his asthma and increasing his respiratory
difficulties. To the contrary, the record showed that the officials showed
concern, gave the prisoner access to an asthma clinic, prescribed medications,
and doctors, and moved the prisoner to a medical wing when a prison doctor
recommended the move. Additionally, he was provided with a non-smoking cell
when he requested one. There was no showing that the prison officials, at any
time, ignored medical advice concerning housing the prisoner. Lee v. Young, No.
07-3651, 2008 U.S. App. Lexis 13316 (7th Cir.).
A prisoner's allegations that he was diagnosed
with emphysema and subsequently suffered chest pains because of smoking by his
cellmate--and that prison officials knew of this problem, but did nothing to
remedy it, were sufficient to state a claim for both present and future injury
based on violation of his Eighth Amendment rights. The plaintiff prisoner also
adequately presented a claim that prison officials failed to protect him from
another cellmate who attacked him after having previously threatened to kill
him. Glick v. Walker, No. 07-2929, 2008 U.S. App. Lexis 7716 (Unpub. 7th Cir.).
A former federal prisoner failed to show that his
exposure to secondhand tobacco smoke in prison endangered his future health.
Brown v. U.S. Justice Department, No. 07-3995, 2008 U.S. App. Lexis 6970
(Unpub. 3rd Cir.).
Federal appeals court orders further proceedings
as to whether prisoner adequately showed that he suffered physical injuries,
including an asthma attack, after a prisoner who was drunk and smoking
cigarettes was placed in his cell in order to be able to recover mental or
emotional damages as required by 28 U.S.C. Sec. 1346(b)(2) of the Federal Tort
Claims Act, and 42 U.S.C. Sec. 1997e(e) of the Prison Litigation Reform Act.
Perez v. U.S., No. 07-1199, 2008 U.S. App. Lexis 6494 (3rd Cir.).
Summary judgment against prisoner in a lawsuit
challenging his exposure to environmental tobacco smoke (ETS) while he was in a
federal prison was improper. The prisoner raised genuine issues of material
fact as to whether his exposure to ETS ignored his medical needs. The court
noted that a Surgeon General's Report stated that there is no such thing as a
safe level of exposure to secondhand smoke, and that there was evidence that
prison employees knew that the inmate was allergic to ETS, which caused him to
suffer from high blood pressure and migraine headaches. These employees
allegedly ignored the plaintiff's requests that they enforce the no-smoking
policy, and "looked the other way" when some prisoners smoked in
cells or other no-smoking areas. The employees also allegedly denied the
plaintiff's request that he be given a non-smoking cellmate. Murrell v.
Casterline, No. 07-30153, 2008 U.S. App. Lexis 6176 (5th Cir.).
Prisoner failed to provide adequate evidence from
which a jury could find that he had suffered harmful exposure to second-hand
tobacco smoke. Laufgas v. Speziale, No. 06-5062, 2008 U.S. App. Lexis 2514 (3rd
Cir.).
A detainee at a D.C. jail claimed that his rights
were violated during his 12-month incarceration by being housed with chain
smokers, along with poor jail air ventilation. His claims were rejected because
he did not show either an actual or an imminent injury, but merely a
"remote and speculative" injury. He did present an expert witness
with the opinion that he would suffer a 55% increased risk of heart disease and
38 times the risk of lung cancer suffered by the average adult U.S. male. But,
because the expert witness never tested the plaintiff, his report did not show
the probability of such harm to the plaintiff. In the absence of any showing of
an actual injury from the smoke exposure, the lawsuit was dismissed. Williams
v. D.C., Civil Action No. 02-1641, 2008 U.S. Dist. Lexis 76 (D.D.C.).
D.C. prisoner failed to show that he suffered
violations of his constitutional rights during his exposure, during his
seven-month confinement, to environmental tobacco smoke (ETS). The objective
component of an Eighth Amendment claim was not satisfied because, while he had
presented an expert witness on jail conditions, that expert was not a medical
doctor, had not consulted with the inmate's doctors, and had not gone to the
jail to take air samples or conducted any test on the plaintiff. The prisoner
also failed to satisfy the subjective part of a deliberate indifference Eighth
Amendment claim, since there was evidence that the jail had instituted an
anti-smoking policy and engaged in efforts to improve air quality. Abdullah v.
Washington, Civil Action No. 02-1642, 2008 U.S. Dist. Lexis 59 (D.D.C.).
Prisoner who claimed that he was exposed to
environmental tobacco smoke (ETS) in violation of his constitutional rights
failed to allege facts sufficient to create a triable issue as to whether the
levels of ETS were unreasonable, or whether the defendants knowingly
disregarded the risk of harm to him from the exposure. Beasley v. Arizona Dept.
of Corrections, No. 05-17079, 2007 U.S. App. Lexis 27771 (9th Cir.).
A Georgia prisoner failed to present sufficient
evidence from which a jury could find that he was deliberately exposed to an
unreasonable level of environmental tobacco smoke (ETS). He also failed to
refute the diagnosis, by a prison doctor, that he did not suffer from a serious
respiratory or cardiovascular medical problem that would result in him being at
particular risk from ETS. Giddens v. Calhoun State Prison, No. 07-11988, 2007
U.S. App. Lexis 25248 (11th Cir.).
An Illinois prisoner failed to show that his
rights were violated in connection with his exposure to second-hand tobacco
smoke. The prisoner suffered from asthma, which allegedly worsened during his
incarceration. In granting summary judgment to prison officials, the court
found that the prisoner had been granted access to doctors, an asthma clinic,
and his prescribed medications, and that he was moved to a non-smoking cell
when he requested it, and to the medical wing when his prison doctor
recommended it. Under these circumstances, prison officials did not act with
deliberate indifference. Even if an Eighth Amendment violation were to be
found, the defendant officials would be entitled to qualified immunity because
they would not have known, at the time, that they were violating his rights.
Lee v. Young, No. 02-cv-281, 2007 U.S. Dist. Lexis 74259 (S.D. Ill.).
Prisoner failed to show sufficient evidence that the
level of environmental tobacco smoke (ETS) he was exposed to after he was
transferred to a single cell was unreasonably high or that it was likely that
his respiratory distress was caused by such exposure. Benjamin v. Goord, No. 02
Civ 1703, 2007 U.S. Dist. Lexis 58788 (S.D.N.Y.).
An Ohio state statute allowing correctional
officials to designate "at least" one tobacco-free housing area
within a correctional facility also allowed them to declare the entire facility
tobacco-free. The defendants also had authority to discipline the plaintiff
prisoner for violating a ban on smoking, so doing so did not constitute
impermissible "harassment" or "retaliation." Call v. Ohio
Dept. of Rehabilitation & Corrections, No. 06AP-1057, 2007 Ohio App.
Lexis 2451 (10th Dist, Franklin County).
Trial court should have allowed plaintiff
prisoner to amend his complaint to assert that his confinement to a cell in
which smoking was allowed constituted cruel and unusual punishment even if he
could not show that it constituted a serious health hazard. "Maybe there's
a level of ambient tobacco smoke that, whether or not it creates a serious
health hazard, inflicts acute discomfort amounting, especially if protracted,
to punishment." The prisoner allegedly suffered discomfort with cellmates
that were heavy smokers for 48 days. Powers v. Snyder, No. 04-1961 2007 U.S.
App. Lexis 10327 (7th Cir.).
In federal prisoner's lawsuit claiming that
Bureau of Prisons (BOP) personnel did not enforce anti-smoking policies
restricting smoking to certain designated areas, a federal trial court ruled
that BOP staff had discretion, under the policies and regulations, concerning
carrying out the policies. The court therefore dismissed the complaint based on
the discretionary function exception of the Federal Tort Claims Act (FTCA), 28
U.S.C. Sec. 2680(a). Reed v. U.S., No. 06-CV-096, 2006 U.S. Dist. Lexis 90547
(E.D. Ky.). [N/R]
Prison officials who made several attempts to
satisfy non-smoking prisoner's request that he be protected against secondhand
tobacco smoke, including transferring him to a cell with another non-smoking
cellmate, and creating policies that tried to limit exposure to such secondhand
smoke were entitled to summary judgment, since they had not acted with
deliberate indifference to a serious risk to his health or safety. Bean v.
Farwell, No. 05-15691, 2006 U.S. App. Lexis 30918 (9th Cir.). [N/R]
Prisoner's allegations concerning smoking by correctional
officers on several occasions were insufficient to state a claim for a
violation of his Eighth Amendment rights by exposing him to environmental
tobacco smoke. These individual incidents did not demonstrate exposure to an
unreasonably high level of such smoke. Bacon v. Taylor, No. CIV.A. 02-431, 414
F. Supp. 2d 475 (D. Del. 2006). [N/R]
Prisoner's federal civil rights lawsuit claiming
that prison's non-smoking policy was unconstitutional was barred by his failure
to exhaust available administrative remedies before filing suit, as required
under the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(a). Harmon v.
Gallegos, No. 05-3209, 158 Fed. Appx. 87 (10th Cir. 2005). [N/R]
Prisoner suffering from asthma failed to show
that prison officials acted with deliberate indifference to either his request
for non-smoking housing or to his asthma itself. Court notes that prisoner was
provided with the option of residing in special or segregated housing, and was
moved to non-smoking housing after being housed with smokers for a period of 17
weeks. This was not unreasonable, given crowding problems at the facility and
the fact that safety issues had to take precedence over a prisoner's smoking
preferences. Bartlett v. Pearson, No. 1:04CV1293, 406 F. Supp. 2d 626 (E.D. Va.
2005). [N/R]
Oklahoma inmate failed to show that exposure to
second-hand tobacco smoke violated his Eighth Amendment rights. The prison
showed that it complied with contemporary standards of the American Corrections
Association concerning prison air quality, quantity, and ventilation, and the
prisoner also failed to provide evidence that he suffered exposure to
unreasonably high levels of smoke. Day v. Snider, No. 101,374, 125 P.3d 1229
(Okla. Civ. App. Div. 3 2005). [N/R]
Even if exposure of a civilly committed sex
offender to environmental tobacco smoke in a treatment facility caused
respiratory distress and aggravated his tuberculosis, he did not show a
violation of his Eight Amendment rights, because he admitted that he was able
to escape from the smoke by going to his room. Rivera v. Marcoantonio, No.
04-2030, 153 Fed. Appx. 857 (3rd Cir. 2005). [N/R]
Oklahoma prisoner failed to prove that he was
exposed to unreasonable levels of second-hand tobacco smoke. Ciempa v. Ward,
No. 04-5176, 150 Fed. Appx. 905 (10th Cir. 2005). [N/R]
Mere negligence at times in enforcing county
correctional facility's no-smoking policies, even if true, was insufficient to
impose liability on warden and assistant warden for deliberate indifference to
prisoner's alleged excessive exposure to second-hand tobacco smoke. Kelley v.
Hicks, #04-14276, 400 F.3d 1282 (11th Cir. 2005). [2005 JB Sep]
Prisoner did not have a due process right to have
a chemical analysis done of the tobacco seized from his cell prior to a
disciplinary proceeding for possessing contraband. Prison officials did not
require the assistance of "a chemist," the court rules, in order to
help decide whether what the guards found in the cell was tobacco. Burks-Bey v.
Vannatta, #04-4025, 130 Fed. Appx. 46 (7th Cir. 2005). [N/R]
Trial court properly granted summary judgment to
prison officials on inmate's claim concerning detrimental exposure to
second-hand tobacco smoke, when prisoner failed to file any affidavits, by either
himself or other inmates, to show that the prison's smoking policy was not
enforced. President v. Stadler, No. 03-30669, 90 Fed. Appx. 711 (5th Cir.
2004). [N/R]
Missouri prisoner failed to show objective proof
that he was subjected to an unreasonably high level of second hand tobacco
smoke while incarcerated. Trial court abused its discretion in excluding
prisoner's expert witness on the harmful effects of second-hand smoke, but this
error was harmless in the absence of objective evidence concerning the level of
second-hand smoke to which the plaintiff was exposed. Larson v. Kempker, No.
04-2220, 2005 U.S. App. Lexis 7523 (8th Cir.). [2005 JB Jun]
Inmate alleged facts sufficient to assert a claim
for a violation of his Eighth Amendment rights by excessive exposure to second
hand tobacco smoke in prison, so trial court improperly dismissed his civil
rights lawsuit. Talal v. White, No. 03-6584 2005 U.S. App. Lexis 5127 (6th Cir.
2005). [2005 JB May]
Prison officials involved in refusing to agree to
prisoner's request that he be assigned to a non-smoking cell were not entitled
to qualified immunity from his claim that this subjected him to a risk of
serious damage to his future health, as well as present aggravation of
respiratory problems. The prisoner's right, under these circumstances, not to
be subjected to these risks was clearly established, and there was evidence
that the prisoner was confined nineteen hours a day in a small, enclosed cell
with a habitual smoker of cigars. Johnson v. Pearson, 316 F. Supp. 2d 307 (E.D.
Va. 2004). [N/R]
It is clearly established, for purposes of
qualified immunity, that a prison could violate the Eighth Amendment by
deliberate indifference to a prisoner's exposure to unreasonable levels of
environmental tobacco smoke (second-hand smoke). Genuine issue of fact as to
whether a reasonable corrections officer could disagree as to whether officer's
alleged smoking in law library violated prisoner's rights barred summary
judgment for officer in prisoner's lawsuit. Gill v. Smith, 283 F. Supp. 2d 763
(N.D.N.Y. 2003). [N/R]
Prison officials were not entitled to dismissal
of former prisoner's lawsuit concerning his allegedly unreasonable exposure to
high levels of environmental tobacco smoke on the basis of the Fugitive
Disentitlement Doctrine after he failed to return to Delaware for arrest for a
probation violation under an order that he allegedly knew about. The doctrine
is found not to apply as there was not a connection between the plaintiff's
alleged fugitive status and his pending civil lawsuit. Atkinson v. Taylor, 277
F. Supp. 2d 382 (D. Del. 2003). [N/R]
Prisoner who is former cancer research scientist
could pursue claim that prison policies exposed him to excessively high levels
of environmental tobacco smoke by housing him with smoking cellmates. Lehn v.
Holmes, #01-1957, 2004 U.S. App. Lexis 7206 (7th Cir. 2004). [2004 JB May]
Prison officials who supervised residential unit
were entitled to qualified immunity from liability on prisoner's claim that
they improperly exposed him to second-hand tobacco smoke when smoking was
prohibited but non-smoking policy was "imperfectly" enforced. Moorer
v. Price, No. 03-1429, 83 Fed. Appx. 770 (6th Cir. 2003). [N/R]
"Vague and speculative" assertions that
permitting other prisoners to smoke exposed the plaintiff inmate to an
unhealthy environment were not sufficient to state a claim for violation of his
constitutional rights. Harrison v. Smith, No. 03-40924, 83 Fed. Appx. 630 (5th
Cir. 2003). [N/R]
Pre-trial detainee failed to show that prosecutor
was individually involved in his confinement in a facility permitting tobacco
smoking which allegedly aggravated a pre-existing medical condition. Prosecutor
was entitled to absolute immunity in both her official and individual capacity,
as the prisoner's detention was part of the initiation and presentation of
criminal charges against him. Reid v. Schuman, No. 03-0031, 83 Fed. Appx. 376
(2nd Cir. 2003). [N/R]
Prisoner failed to show that he had serious medical
needs for a smoke-free environment or that defendant officials were
deliberately indifferent to his needs when he was never diagnosed with any
medical condition and the correctional facility had a non-smoking policy, even
though it was "imperfectly" enforced. Henderson v. Martin, #01-2463,
73 Fed. Appx. 115 (6th Cir. 2003). [N/R]
Prison officials did not show deliberate
indifference to inmate's alleged exposure to second hand tobacco smoke. Prison
medical personnel gave inmate medications for symptoms and issued a medical
directive that he should be housed with non-smokers. The prisoner presented no
evidence that other defendant officials had knowledge of his allegedly smoking
related ailments. Garcia v. Maddock, #02-15540, 64 Fed. Appx. 10 (9th Cir.
2003).[N/R]
Prisoner with high blood pressure was not
subjected to cruel and unusual punishment by being housed in the same cell with
smokers, particularly since prison officials twice transferred him to other
cells upon his request, when it was proven that his cellmates were in fact
smokers. Taylor v. Boot, #02-1683, 58 Fed. Appx. 125 (6th Cir. 2003). [N/R]
Correctional rule prohibiting the smoking of
tobacco did not violate Native American prisoner's right to practice his
religion despite his belief that the smoke carries his prayers and would purify
his body and spirit. There was an overriding compelling interest in eliminating
tobacco in prisons, related to promoting health, reducing litigation, reducing
medical costs, and maintaining internal security. Roles v. Townsend, No. 28073,
64 P.3d 338 (Idaho App. 2003). [2003 JB Jun]
Delaware state prison officials were not entitled
to qualified immunity from claims that inmate's Eighth Amendment rights were
violated by exposure to environmental tobacco smoke that created current
serious medical needs as well as posing an unreasonable risk of future harm.
The right not to be exposed to such risks was "clearly established."
Atkinson v. Taylor, #01-3565, 316 F.3d 2257 (3rd Cir. 2003). [2003 JB Apr]
Prisoner's claim for injunctive relief against
unreasonable exposure to second-hand tobacco smoke was not moot, even though he
had been transferred to another housing block and the prison had implemented a
restrictive smoking policy. The plaintiff was housed in a cell block without
individual cell windows and the prisoner claimed that the new policy was not
actually being enforced. Davis v. New York, #01-0118, 316 F.3d 93 (2nd Cir.
2002). [N/R]
Prisoner stated an 8th Amendment claim for
unreasonable exposure to second-hand tobacco smoke when he asserted that the
exposure continued for about six weeks and that the defendant officials were
deliberately indifferent to the risk this could have to his health. Sanders v.
Kingston, #02-2541, 53 Fed. Appx. 781 (7th Cir. 2002). [N/R]
Tennessee prisoner who unsuccessfully pursued
prior federal lawsuit asserting essentially the same claim that his
constitutional rights were violated by housing him in conditions exposing him
to second-hand tobacco smoke and that he was subject to retaliatory transfer to
a facility without a non-smoking section barred his present lawsuit in state
court since the issues presented had already been decided. Sweatt v. Tennessee
Dept. of Correction, 88 S.W.2d 567 (Tenn. App. 2002). [N/R]
Nebraska Supreme Court, in prisoner's lawsuit
claiming that his rights were violated by being celled with another inmate who
smoked tobacco, rules that Prison Litigation Reform Act's requirement, in 42
U.S.C. Sec. 1997e(a), that inmates exhaust available administrative remedies
before pursuing federal civil rights lawsuits is an affirmative defense, rather
than a necessary element of the plaintiff's claim. In reaching this ruling, the
court overturned its own prior ruling in Pratt v. Clarke, 258 Neb. 402, 604
N.W.2d 822 (1999). Cole v. Isherwood, No. 8-00-665, 653 N.W.2d 821 (Neb. 2002).
[N/R]
Prisoner failed to show that the level of his forced
exposure to second hand smoke violated his right to be free from cruel and
unusual punishment when the facts showed that he had been housed in a
smoke-free facility, and that prison officials enforced a no-smoking policy
with disciplinary sanctions imposed on prisoners who smoked. This showed that,
whatever levels of second-hand smoke the prisoner was exposed to, prison
officials were not "deliberately indifferent" to the risk of harm
that second-hand smoke posed to him. White v. Caruso, #00-2257, 39 Fed. Appx.
75 (6th Cir. 2002). [N/R]
Placing a non-smoking inmate in a cell for 42 days
with a cellmate who was a heavy smoker did not amount to cruel and unusual
punishment, despite non-smoker's discomfort and irritation. Jones v. Bayer, 190
F. Supp. 2d 1204 (D. Nev. 2002). [2002 JB Jul]
Prisoner
suffering from severe chronic asthma stated a claim for deliberate indifference
to his serious medical needs by alleging that he was exposed to high levels of
environmental tobacco smoke. Alvarado v. Litscher, #00-3959, 267 F.3d 648 (7th
Cir. 2001). [2002 JB Feb]
296:124 State prison ban on smoking, sale of
tobacco products, and possession of tobacco by inmates did not violate inmate's
equal protection rights or constitute "disability discrimination"
against smokers; federal court dismisses lawsuit as frivolous. Brashear v. Simms,
138 F. Supp. 2d 693 (D. Md. 2001).
295:109
Prisoners claiming that excessive exposure to second hand tobacco smoke
constituted deliberate indifference to their existing medical conditions and
disability
discrimination have to provide individual proof; correctional officials who
took some steps to restrict smoking were entitled to qualified immunity from
damages for allegedly exposing prisoners to a risk of future harm. McIntyre v.
Robinson, 126 F. Supp. 2d 394 (D. Md. 2000).
280:60 Prisoners
right to be free from unreasonable levels of exposure to second-hand tobacco
smoke was "clearly established" in 1993, federal appeals court rules;
prison officials were not entitled to qualified immunity from liability for
alleged health problems caused by having allowed smoking in certain areas of
New York prison. Warren v. Keane, No. 98-2997, 196 F.3d 330 (2nd Cir. 1999).
280:61 Pre-trial
detainee allegedly subjected to second-hand smoke for 4-1/2 years in county
jail could not recover damages from county officials for either present or
future health problems when present health problems were not sufficiently
serious and there was no objective certainty that future health problems would
occur. Henderson v. Sheahan, #98-2964, 196 F.3d 839 (7th Cir. 1999).
270:92 Prison
official who was arguably aware of prisoner's concerns about exposure to
second-hand tobacco smoke could be sued for alleged Eighth Amendment violation
in placing prisoner in setting where he continued to be exposed to such smoke;
allowing smoking in dorm area, however, did not violate First Amendment right
to freedom of association. McPherson v. Coombe, 29 F.Supp.2d 141 (W.D.N.Y.
1998).
261:141 Co.
jail's policy of conducting limited strip search of all detainees to be placed
in a cell was reasonable; searches were conducted by officers of the same sex
as prisoner and were for the legitimate purpose of excluding drugs and weapons
from the facility. Magill v. Lee Co., 990 F.Supp. 1382 (M.D. Ala. 1998).
263:171 Strip
searches of prisoner after returning to facility from medical appointments or
court appearances, after contact visits with non-prisoners, and during a
general search of the cell block did not violate either Fourth or Eighth
Amendment; searches were not conducted for purposes of punishment, but for
legitimate reasons related to correctional security. Peckham v. Wis. Dept. of
Corrections, #96-1894, 141 F.3d 694 (7th Cir. 1998).
254:28
Correctional officer with asthma awarded $420,300 against state correctional
department on disability discrimination claim based on his dismissal after he
complained about tobacco smoking at correctional facility. Muller v. Costello,
997 F.Supp. 299 (N.D.N.Y. 1998). » Editor's Note: For the trial court's
decision denying a motion to dismiss the lawsuit, see Muller v. Costello, 1996
U.S. Dist. Lexis 5239 (N.D.N.Y.).
253:13 Strip
search and urinalysis drug testing of over a hundred inmates selected out by
prison officials based on their prior involvement with drugs or being cellmates
with a prisoner who was selected did not violate any clearly established
constitutional right; prison officials entitled to qualified immunity. Thompson
v. Souza, 111 F.3d 694 (9th Cir. 1997).
262:158
Prisoner's rights were not violated by routine strip searches required to enter
prison's "mini law library" or by strip search conducted during
security check on his cell. Wilson v. Shannon, 982 F.Supp. 337 (E.D.Pa. 1997).
254:27 Prisoner who
failed to show actual injury from exposure to secondhand tobacco smoke did not
show a violation of his Eighth Amendment rights; prison was not deliberately
indifferent to impact of tobacco smoke when it made some effort to isolate
smoking areas. Simmons v. Sager, 964 F.Supp. 210 (W.D. Va. 1997).
256:52 Prisoner
was entitled to attorneys' fees of $8,346.35 and $2,952.82 in expenses as
prevailing party despite trial court's rejection of damage claims against
individual correctional officials and rejection of claim for injunction against
prison smoking; appeals court upholds finding that prisoner's lawsuit was a
factor in adoption of no-smoking policy. Weaver v. Clarke, 120 F.3d 852 (8th
Cir. 1997).
256:59
Correctional officials were not entitled to qualified immunity on prisoner's
suit claiming that exposure to secondary tobacco smoke posed a threat to his
health. Rochon v. City of Angola, La., 122 F.3d 319 (5th Cir. 1997).
[N/R] Disabled
prisoner brought lawsuit seeking total ban on prison smoking; trial court
denies injunction. Candelaria v. Greifinger, 1997 U.S. Dist. Lexis 4616
(N.D.N.Y.) and 1997 U.S. Dist. Lexis 4617 (N.D.N.Y.).
242:28 Federal
court enjoins D.C. correctional facility's non-enforcement of its own
non-smoking policy; rules that plaintiff non-smoking inmates were "highly
likely" to prevail on claim that their constant exposure to second-hand
tobacco smoke "violates contemporary standards of decency." Crowder
v. Kelly, 928 F.Supp. 2 (D.D.C. 1996).
247:108
Correctional officials were not entitled to qualified immunity from claim that
they failed to remedy dangerous level of second- hand tobacco smoke; federal
court rules that failure to do so, as early as date of 1986 Surgeon General's
report on second-hand smoke, could not be objectively reasonable. Warren v.
Keane, 937 F.Supp. 301 (S.D.N.Y. 1996).
229:13 Prisoner
whose right lung was removed because of cancer did not establish that prison
officials acted with deliberate indifference by housing him with smokers. Goffman
v. Gross, 59 F.3d 668 (7th Cir. 1995). [Cross-reference: Medical Care].
230:29 Housing
non-smoking inmate in living area with eight tobacco smokers did not constitute
negligence; no recovery of damages under Ohio law for exposing non-smoking inmate
to environmental tobacco smoke. Manos v. Ohio Dept. of Rehabilitation and
Correction, 654 N.E.2d 209 (Ohio Ct. Cl. 1995).
231:45 Failure
to provide free cigarettes to prisoner in disciplinary custody did not
constitute cruel and unusual punishment, violation of due process, or violation
of equal protection. Austin v. Lehman, 893 F.Supp. 448 (E.D. Pa. 1995).
235:107
Massachusetts appeals court reinstates lawsuit by nonsmoking inmate with
coronary and respiratory problems alleging that prison officials' repeated
celling of him with smoking inmates constituted deliberate indifference to his
serious medical problems. Jackson v. Commissioner of Correction, 39 Mass. App.
Ct. 566, 658 N.E.2d 981 (1995). [Cross-reference: Medical Care].
233:76 Despite
the fact that right to be free from harmful effects of excessive second-hand
smoke was "clearly established" before inmate filed suit over being
housed with a series of tobacco smoking cellmates, prison officials were
entitled to summary judgment since they adopted a new smoking policy within
eleven months of U.S. Supreme Court decision on issue, which showed they were
not "deliberately indifferent" to the problem. Jordan v. N.J. Dept.
of Corrections, 881 F.Supp. 947 (D.N.J. 1995).
237:141 Warden
could be held liable for sexual assault on prisoner transferred from his
facility to a prison camp if he knew that there was a substantial risk of such
harm to prisoners with characteristics similar to the plaintiff and acted with
deliberate indifference in failing to take reasonable precautions to either
screen out such prisoners from transfer there or take reasonable steps to
protect them. Taylor v. Michigan Dept. of Corrections, 69 F.3d 76 (6th Cir.
1995).
237:142 Prison
officials did not engage in "deliberate indifference" to serious
medical need by housing prisoner with "mild" asthma with smokers in
protective custody unit, federal appeals court rules. Oliver v. Deen, 77 F.3d
156 (7th Cir. 1996). [Cross-reference: Medical Care]. 221:75 Housing a non-smoking
inmate in a cell with a smoking prisoner did not violate his Eighth Amendment
rights when non- smoker did not show a serious medical condition or high level
of second-hand smoke which would cause serious medical problems in the future.
Jackson v. Berge, 864 F.Supp. 873 (E.D. Wis. 1994).
224:125 Prison
officials were not entitled to qualified immunity in suit brought by prisoner
alleging that they deliberately failed to enforce a smoking ban on his cell
which they had previously ordered in response to his grievance that his
roommate's smoking was detrimental to his current medical condition. Weaver v.
Clarke, 45 F.3d 1253 (8th Cir. 1995).
Prisoner's suit
claiming prison's restrictions on inmate smoking were "cruel and unusual
punishment" was frivolous, federal appeals court rules. Beauchamp v.
Sullivan, 21 F.3d 789 (7th Cir. 1994).
Co. prison's
policy of prohibiting all smoking by inmates was not in violation of their
constitutional rights; prison could legitimately distinguish between inmates
and employees in allowing smoking by employees in designated areas. Reynolds v.
Bucks, 833 F.Supp. 518 (E.D. Pa. 1993). Prisoner could sue prison officials for
violation of his Eighth Amendment right against cruel and unusual punishment
based on his exposure to "environmental" tobacco smoke because of
smoking of other prisoners; Eighth Amendment claim can be based on
"unreasonable" risk of future harm to health. Helling v. McKinney,
113 S.Ct. 2475 (1993).
Pre-trial
detainees constitutional rights were not violated by a city's ban on smoking in
all public buildings which amounted to a ban on smoking by all prisoners.
Washington v. Tinsley, U.S. Dist. Ct., S.D. Tex., No. 92-2039, Dec. 16, 1992,
61 U.S.L.W. 2451, 52 CrL 1321 (Feb. 2, 1993).
Two federal
appeals courts consider whether inmates may sue prison officials for placing
them in cells with tobacco smokers against their will; one grants qualified
immunity to prison official, while the other orders further factual hearings on
the seriousness of inmates' alleged medical problems. Murphy v. Dowd, 975 F.2d
435 (8th cir. 1992); Hunt v. Reynolds, 974 F.2d 734 (6th cir. 1992).
Housing an
inmate who strenuously objected to tobacco smoke in a cell with a smoker for
fifteen days did not constitute "cruel and unusual punishment."
Guilmet v. Knight, 792 F.Supp. 93 (E.D. Wash. 1992).
Federal appeals
court vacates its earlier decision that involuntary exposure of a non-smoking
inmate to tobacco smoke from a cellmate could constitute "cruel and
unusual punishment." Clemmons v. Bohannon, 956 F.2d 1523 (10th Cir. 1992).
Prisoner's
exposure to second-hand tobacco smoke did not constitute cruel and unusual
punishment in the absence of a showing of "deliberate indifference."
Johnson v. Moore, 926 F.2d 921 (9th Cir. 1991).
Non-smoking
prisoner's compelled exposure to second-hand smoke did not show Eighth
Amendment violation; appeals court holds that such a claim is barred, absent
intention to inflict wanton pain or deliberate indifference to resulting wanton
pain. Steading v. Thompson, No. 90-2588, 60 U.S.L.W. 2148 (7th Cir. 1991).
Inmate's
exposure to tobacco smoke in visitation rooms did not constitute cruel and
unusual punishment. Harris v. Murray, 758 F.Supp. 1114 (E.D. Va. 1991).
Two federal
appeals courts rule that inmates' involuntary exposure to secondary tobacco
smoke may be cruel and unusual punishment; Ninth Circuit finds prison officials
entitled to qualified immunity from damage claims arising from smoke exposure.
Clemmons v. Bohannon, 918 F.2d 858 (10th Cir. 1990); McKinney v. Anderson, No.
89-1689, 91 Daily Journal D.A.R. 1476 (9th Cir., February 5, 1991).
Inmate's
exposure to second-hand tobacco smoke did not constitute cruel and unusual
punishment. West v. Wright, 747 F.Supp. 329 (E.D. Va. 1990).
No-smoking
policy at county jail did not constitute cruel and unusual punishment. Doughty
v. Bd. of Co. Com'rs for Co. of Weld, 731 F.Supp. 423 (D. Colo. 1989).