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U.S. Parole Commission Retaliation Reversed

The Ninth Circuit U.S. Court of Appeals issued a ruling that safeguards the due process rights of prisoners whose release dates are committed to the discretion of parole agencies. In Bono v. Benov, 197 F.3d 409 (9th Cir. 1999), the court affirmed the application of the North Carolina v. Pearce presumption of vindictiveness to the actions United States Parole Commission.

In Pearce, 395 U.S. 711 (1969), the Supreme Court ruled that a presumption of vindictiveness applies whenever a sentencing judge who has been reversed on appeal imposes a harsher sentence upon a second conviction than was imposed after the first. Unless the judge places on the record, at the time of sentencing, valid reasons for imposing an increased sentence, the increased sentence will be presumed to be the result of vindictive retaliation, which violates the defendant's due process right to pursue an appeal without fear of being penalized.

In Bono, the petitioner, a federal prisoner, had long held a presumptive parole date of 30 years. After the release date was granted, but before it actually arrived, Bono successfully brought two habeas corpus actions against the Parole Commission. Immediately after winning the second habeas petition, the Parole Commission extended Bono's release date from 30 to 42 years, but provided no reason for doing so other than the severity of his original offense.

Because he had an exemplary conduct record and there was no apparent justification for the extension of his release date, Bono instituted another habeas action. He argued that the Parole Commission had extended his sentence in retaliation for his successful habeas petitions, and therefore the Pearce presumption of vindictiveness should apply to his situation. The district court, finding that the Parole Commission had offered no valid reason for extending Bono's sentence, agreed, ruling that the Parole Commission had acted vindictively. Because Bono's original release date had passed, the Court ordered him released immediately. On appeal, the Ninth Circuit affirmed the district court's order.

The ruling in Bono should provide some comfort to prisoners who find it necessary to sue parole agencies. It should be noted, however, that as long as a parole agency cites some justifiable reason at the time it withdraws a release date, the Pearce presumption probably will not be available, even if the sentence extension comes immediately on the heels of a successful court challenge. Nevertheless, Bono does place some measure of restriction on the seemingly boundless discretion of parole agencies. See: Bono v. Benov, 197 F.3d 409 (9th Cir. 1999).

[Note: the author argued Mr. Bono's case in the Ninth Circuit.]

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Related legal case

Bono v. Benov

Warren v. Keane, 196 F.3d 330 (2d Cir. 11/16/1999)

[1] U.S. Court of Appeals, Second Circuit

[2] Docket No. 98-2997

[4] November 16, 1999


[6] Michael B. Lumer, Esq., Kaiser Saurborn & Mair, P.C. (David N. Mair, of counsel), New York, N.Y., for Plaintiffs-Appellees. Thomas Sofield, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, Thomas D. Hughes, Assistant Solicitor General, of counsel), New York, N.Y., for Defendants-Appellants.

[7] Before: Winter, Chief Judge, Walker and Cabranes, Circuit Judges.

[8] The opinion of the court was delivered by: Walker, Circuit Judge

[9] August Term 1998

[10] Argued July 13, 1999

[11] Appeal from an order of the United States District Court for the Southern District of New York (Sprizzo, J.), denying defendants-appellants' motion for summary judgment, and holding that they were not entitled to qualified immunity from plaintiffs-appellees' claim of exposure to unreasonably dangerous levels of environmental tobacco smoke.

[12] Affirmed and Remanded for further proceedings.

[13] Plaintiffs-appellees Vince Warren, Tyrone Benton, and John Murray, all New York state prison inmates, brought this action pursuant to 42 U.S.C. § 1983, alleging that they were subjected to cruel and unusual punishment through exposure to environmental tobacco smoke ("ETS"), commonly known as second-hand smoke. Defendants-appellants, who are officials of the New York State Department of Correctional Services ("DOCS"), appeal from an order of the United States District Court for the Southern District of New York (John E. Sprizzo, Judge), denying their motion for summary judgment and holding that they were not entitled to qualified immunity from plaintiffs' suit. We affirm the decision of the district court and remand for further proceedings.


[15] Plaintiffs have been confined at one time or another in Cell Block A of the Sing Sing prison in Ossining, New York. In March of 1990, defendants adopted a smoking policy for prisons in response to the New York State Clean Indoor Air Act, N.Y. Pub. Health L. § 1399-n et seq., which prohibits smoking in certain public areas but does not regulate smoking in private residences. Sing Sing Policy and Procedure 104 treats inmates' cells as private residences, allowing inmates to smoke freely in their cells. Smoking is also allowed in a recreation area near Cell Block A. Smoking is prohibited, however, in Sing Sing's gym, classroom, mess hall, library and chapel.

[16] On August 25, 1993, plaintiffs filed this action in the district court. Their amended pro se complaint *fn1 alleges that the level of ETS in the cells and common areas at Sing Sing, combined with poor ventilation, creates serious long-term health risks, and that by exposing plaintiffs to these conditions, defendants violated their Eighth Amendment rights. Plaintiffs assert that defendants have failed both to promulgate sufficient smoking regulations and to enforce the prohibitions that are in place. They claim to suffer from sinus problems, headaches, dizziness, asthma, hepatitis, nausea, shortness of breath, chest pains, and tuberculosis as a result of exposure to ETS.

[17] Defendants moved for summary judgment on two grounds: (1) exposure to ETS could not amount to an Eighth Amendment violation and, (2) in any event, they were entitled to qualified immunity. The district court denied defendants' motion for summary judgment in a Memorandum Opinion and Order dated September 10, 1996. Judge Sprizzo determined that disputed issues of material fact precluded summary judgment on either of the grounds asserted by defendants. Discovery proceeded apace, until defendants renewed their motion for summary judgment on the basis of qualified immunity. They contended that intervening caselaw and facts developed through discovery bolstered their argument. On October 20, 1998, the district court, after hearing oral argument, adhered to its earlier decision and denied the motion from the bench. Defendants took this appeal.


[19] We review the district court's decision whether to grant summary judgment on the basis of qualified immunity de novo. See LaBounty v. Coughlin, 137 F.3d 68, 71 (2d Cir. 1998). The doctrine of qualified immunity protects government officials from suits for money damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine "serves to protect government officials from the burdens of costly, but insubstantial, lawsuits." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). Defendants are entitled to qualified immunity if (1) their actions did not violate clearly established law, or (2) it was objectively reasonable for them to believe that their actions did not violate such law. See Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996).

[20] The "chronic difficulty" in applying the test for qualified immunity is defining the right at issue in a manner that is neither too broad (thereby exposing officials to numerous suits based on violations of abstract rights) nor too narrow (thereby insulating nearly all discretionary decisions from liability). See LaBounty, 137 F.3d at 73-74. Moreover, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).

[21] On June 18, 1993, two months before plaintiffs filed their complaint, the Supreme Court decided Helling v. McKinney, 509 U.S. 25 (1993). In Helling, the Court held that the Eighth Amendment prohibits prison officials from exhibiting deliberate indifference to future health problems that an inmate may suffer as a result of current prison conditions, even if the inmate "shows no serious current symptoms." Id. at 33. The Court explained that a plaintiff "states a cause of action under the Eighth Amendment by alleging that [defendants] have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health." Id. at 35.

[22] The Supreme Court identified both objective and subjective elements. Objectively, a plaintiff "must show that he himself is being exposed to unreasonably high levels of ETS." Id. The objective factor not only embraces the scientific and statistical inquiry into the harm caused by ETS, but also "whether society considers the risk . . . to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id. at 36. Subjectively, the plaintiff must prove deliberate indifference, considering the officials' "current attitudes and conduct" and any policies that have been enacted. Id.

[23] We hold that after Helling, it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate's exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate's health. See Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997) (denying qualified immunity on ETS claim in light of Helling). We reject defendants' argument that the right must be so narrowly defined as to mirror the facts in Helling, where an inmate was double-celled with another inmate who smoked five packs of cigarettes daily; a court need not have passed on the identical conduct in order for its illegality to be "clearly established." See LaBounty, 137 F.3d at 74.

[24] Moreover, even before Helling was decided, plaintiffs possessed clearly established rights with respect to their health conditions. In LaBounty, a case involving the alleged exposure of prison inmates to asbestos, we held that the right at stake was not the narrow right to be free from exposure to asbestos, but a broader "right to be free from deliberate indifference to serious medical needs." LaBounty, 137 F.3d at 74. We noted that this right had been clearly established as far back as 1976 by Estelle v. Gamble, 429 U.S. 97, 104 (1976). See id. We determined that "[g]iven the known dangers of friable asbestos in 1991-92," a reasonable person would have known that exposure to asbestos could violate the Eighth Amendment. LaBounty, 137 F.3d at 74. Similarly, the medical dangers of ETS were well known to defendants; Sing Sing Policy and Procedure 104 itself states that "the health risks associated with smoking are well-documented." Given the known dangers of ETS, we conclude that a reasonable person would have understood that exposing an inmate to high levels of ETS could violate the Eighth Amendment.

[25] Defendants also argue that even if plaintiffs' rights were clearly established, it was reasonable for them to believe that they were not violating these rights. We disagree. The facts remain in dispute, but as the district court observed in its first denial of defendants' summary judgment motion, "[p]laintiffs' allegations, if believed, overwhelmingly describe a prison environment permeated with smoke resulting from, inter alia, under-enforcement of inadequate smoking rules, overcrowding of inmates and poor ventilation." Warren v. Keane, 937 F. Supp. 301, 305 (S.D.N.Y. 1996). Until the facts are determined, we are unable to say that any prison official reasonably could have believed that the alleged severe exposure to ETS did not violate the plaintiffs' Eighth Amendment rights.

[26] We intimate no view as to whether plaintiffs will ultimately be able to support both the objective and subjective elements of their claim under Helling. However, at this stage of the litigation defendants are not entitled to qualified immunity from these claims, and plaintiffs may proceed with their action.


[28] The order of the district court is affirmed, and the case is remanded to the district court for further proceedings. Costs will be taxed to the appellants.


Opinion Footnotes


[29] *fn1 Counsel commenced their representation of plaintiffs on January 22, 1996.