AVERY v. POWELL, 695 F. Supp. 632 (D.N.H. 08/29/1988)

[1] UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[2] 88-7-D

[3] 695 F. Supp. 632, 1988

[4] August 29, 1988

[5] Clifford Avery, et al.
v.
Ronald Powell, Commissioner, New Hampshire State Department of Corrections and Michael Cunningham, Warden, New Hampshire State Prison, in their individual and official capacities

[6] Attorneys for Plaintiff: Mr. Clifford Avery, Pro Se, Concord, New Hampshire, Mr. Dennis R. Cookish, Pro Se, Concord, New Hampshire , Attorney for Defendant: Daniel J. Mullen, Esq., Asst. AG, Concord, New Hampshire

[7] Shane Devine, Chief United States District Judge.

[8] The opinion of the court was delivered by: DEVINE

[9] MEMORANDUM AND ORDER

[10] SHANE DEVINE, CHIEF UNITED STATES DISTRICT JUDGE

[11] Plaintiff Clifford Avery, an inmate incarcerated in the New Hampshire State Prison ("NHSP"), *fn1" brings this pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against defendants as NHSP officials and in their personal capacities. In his amended complaint, plaintiff claims that his continuous exposure to passive tobacco smoke as a condition of confinement violates the Eighth, Fifth, and Fourteenth Amendments to the United States Constitution and state law. Plaintiff seeks a declaratory judgment that defendants' actions are unconstitutional and an injunction requiring the separation of the prison into smoking and nonsmoking areas; he also seeks monetary damages. Jurisdiction is asserted pursuant to 28 U.S.C. § 1343(a) and the doctrine of pendent jurisdiction.

[12] At bar are defendants' motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., and plaintiff's motions for (1) a temporary restraining order and/or a preliminary injunction, Rule 65(a)-(b), Fed. R. Civ. P.; (2) class certification, Rule 23(a)-(b), Fed. R. Civ. P.; and (3) amendment of the complaint to add as a defendant the Unit Manager of the halfway house where plaintiff has resided, Rule 15(a), Fed. R. Civ. P. The Court resolves the motions on the documents as filed. See Rule 11(g), Rules of the United States District Court for the District of New Hampshire.

[13] Discussion

[14] I. Defendants' Motion to Dismiss

[15] Plaintiff's complaint presents this Court with a constitutional issue of first impression in this judicial circuit: whether a prisoner's constant, involuntary exposure to passive tobacco smoke is violative of his rights under the Eighth or Fourteenth Amendments to the United States Constitution, the New Hampshire Constitution, or New Hampshire state law. Defendants move to dismiss, asserting that this cause of action does not state a claim upon which relief may be granted.

[16] In resolving a Rule 12 motion to dismiss, the Court must determine whether, based on the claims contained in the complaint, plaintiff is entitled to offer evidence. V.S.H. Realty, Inc. v. Texaco, 757 F.2d 411, 414 (1st Cir. 1985) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974)). The Court's consideration is limited to the allegations of the complaint, Litton Indus. v. Colon, 587 F.2d 70, 74 (1st Cir. 1978), and such allegations are "construed in the light most favorable to plaintiff and taken as admitted, with dismissal to be ordered only if the plaintiff is not entitled to relief under any set of facts he could prove," Chasan v. Village Dist. of Eastman, 572 F. Supp. 578, 579 (D.N.H. 1983) (and citations therein), aff'd without opinion, 745 F.2d 43 (1st Cir. 1984); see also Knight v. Mills, 836 F.2d 659, 664 (1st Cir. 1987). Pro se complaints are to be liberally construed and are held to a less stringent standard than pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Lyons v. Powell, 838 F.2d 28, 31 (1st Cir. 1988). Therefore, for the purpose of this motion, the facts as stated by plaintiff in his complaint and as summarized below are accepted as true.

[17] At the time his complaint was filed, plaintiff was one of approximately two hundred inmates incarcerated in the Medium North and Medium South Units of the New Hampshire State Prison. These Units consist of three floors each with four "pods" to a floor. Each pod consists of ten cells, a common day room, and a bathroom. Each cell on the first and second floors of each Unit houses two inmates per cell; the third floor of each Unit houses one inmate per cell. The Medium North and Medium South Units share a common air flow system which circulates air and heat between the pods.

[18] Plaintiff is a nonsmoker. There is no Department of Corrections policy which separates nonsmoking inmates from inmates who smoke. The lack of such a policy subjects plaintiff and other nonsmokers to constant and involuntary inhalation of tobacco smoke. Plaintiff contends that tobacco smoke contains a number of toxic substances and that these substances have a long-term pernicious effect on his health.

[19] A. The Eighth Amendment Claim

[20] Although "there was a time . . . when prisoners had no rights," Sostre v. Preiser, 519 F.2d 763, 764 (2d Cir. 1975), it is now beyond question that individuals convicted of crimes retain certain constitutional rights, including rights protected by the Eighth Amendment, *fn2" Bell v. Wolfish, 441 U.S. 520, 535 n.16, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983).

[21] The Eighth Amendment proscribes punishment that is cruel and unusual, Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 2691, 101 L. Ed. 2d 702 (1988) (plurality opinion); Rhodes v. Chapman, 452 U.S. 337, 345, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981); Hawkins v. Hall, 644 F.2d 914, 917 (1st Cir. 1981), and is applicable to the states through the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 667, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962). Although the United States Supreme Court has not crafted a specific definition of what constitutes cruel and unusual punishment, it has "interpreted these words 'in a flexible and dynamic manner,' and has extended the Amendment's reach beyond the barbarous physical punishment at issue in the Court's earlier cases." Rhodes, supra, 452 U.S. at 345 (citation omitted).

[22] In Rhodes, the Court considered for the first time the limitation that the Eighth Amendment imposes upon conditions of confinement:

[23]

Today the Eighth Amendment prohibits punishments which, although not physically barbarous, 'involve the unnecessary and wanton infliction of pain' or are grossly disproportionate to the severity of the crime. Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification.



[24] Id. at 346 (citation omitted). The court stated that "no static test" exists to assist the courts in determining when conditions of confinement are cruel and unusual, id., *fn3" and observed that "the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,'" id. (quoting Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958) (plurality opinion)). See also Weems v. United States, 217 U.S. 349, 373, 54 L. Ed. 793, 30 S. Ct. 544 (1910) ("Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth.").

[25] The Rhodes court held that evolving standards of decency are to be determined with reference to "objective factors to the maximum possible extent." Rhodes, supra, 452 U.S. at 346 (citation omitted). In his concurring opinion, Justice Brennan noted that the use of experts can be of assistance to the courts in objectively evaluating the standards for confinement, "but in the end, the court attempting to apply them is left to rely upon its own experience and on its knowledge of contemporary standards." Id. 452 U.S. at 364 & n.12 (Brennan, J., concurring) (citing Coker v. Georgia, 433 U.S. 584, 597, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977)) (plurality opinion).

[26] In construing the Rhodes standard in connection with prison conditions, the First Circuit Court of Appeals has held that

[27]

Rhodes. . . makes clear that discomfort compelled by conditions of confinement, without more, does not violate the Eighth Amendment, that wanton, unnecessary, or grossly disproportionate imposition of restraints does violate the amendment, as does a serious deprivation of basic human needs, viewed under current standards defining 'the minimal civilized measure of life's necessities.'"



[28] Jackson v. Meachum, 699 F.2d 578, 581-82 (1st Cir. 1983) (citations omitted). The First Circuit has also stated that "the Eighth Amendment prevents only conditions of confinement that involve the wanton and unnecessary infliction of pain, that deny basic human needs or that are grossly disproportionate to the severity of the crime warranting imprisonment." Santana v. Collazo, 714 F.2d 1172, 1179 (1st Cir. 1983) (citing Rhodes, supra, 452 U.S. at 347), cert. denied, 466 U.S. 974, 80 L. Ed. 2d 825, 104 S. Ct. 2352 (1984).

[29] This review of Eighth Amendment jurisprudence demonstrates that in order to decide the instant question, the Court must decide whether constant, involuntary exposure to tobacco smoke rises to the level of punishment or whether such exposure is merely part of the discomfort which must be endured as a consequence of being sentenced to prison. If the Court finds that exposure to environmental tobacco smoke (hereinafter "ETS") does constitute punishment, it must then decide whether the punishment offends society's evolving standards of decency.

[30] 1. ETS as Punishment

[31] Defendants argue that no violation of the prohibition against cruel and unusual punishment can be found absent the infliction of actual physical pain. The Court disagrees.

[32] The state acquires the power to punish an individual after it has secured a formal adjudication of guilt in accordance with due process of law, City of Revere, supra, 463 U.S. at 244, and it is punishment that is subject to scrutiny under the Eighth Amendment, Hutto v. Finney, 437 U.S. 678, 685, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). In both Hutto and Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), the Supreme Court began its analysis by noting that the "Eighth Amendment's ban . . . 'proscribe[s] more than physically barbarous punishments.' It prohibits penalties that are grossly disproportionate to the offense, as well as those that transgress today's 'broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" Hutto, supra, 437 U.S. at 685 (quoting Gamble, supra, 429 U.S. at 102) (citation omitted). From these precedents the Rhodes court concluded: "Conditions other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities. Such conditions could be cruel and unusual under the contemporary standard of decency that we recognized in Gamble, supra, [429 U.S.] at 103-104." Rhodes, supra, 452 U.S. at 347.

[33] Thus, conditions of confinement must be judged against society's evolving standards of decency, not in relation to whether the punishment inflicts actual physical pain. See Trop v. Dulles, supra, 356 U.S. at 101 (denationalization considered punishment). This principle has served as a guide for numerous courts in overturning as cruel and unusual punishment practices which had long been accepted, see, e.g., Cunningham v. Jones, 567 F.2d 653, 657 (6th Cir. 1977) (bread and water diet) (quoting Landman v. Royster, 333 F. Supp. 621, 647 (E.D. Va. 1971)); Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968) (use of the strap), or conditions which make intolerable otherwise constitutional terms of imprisonment, Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 38 L. Ed. 2d 324, 94 S. Ct. 462 (1973); Martinez v. Chavez, 574 F.2d 1043, 1046 (10th Cir. 1978) (suffocating jail conditions); Fischer v. Winter, 564 F. Supp. 281, 301 (N.D. Cal. 1983) (totality of prison conditions unconstitutional), and it is the principle which guides the Court in resolving the issue it faces in the instant action.

[34] Defendants argue that exposure to ETS is at most a discomfort and that mere discomfort is not violative of the Eighth Amendment. See Rhodes, supra, 452 U.S. at 349. Plaintiff, on the other hand, alleges that constant exposure to ETS imperils his physical health because tobacco smoke contains components such as carbon monoxide, nicotine, hydrocyanic acid, ammonia, and formaldehyde, as well as substances which are pharmacologically active, toxic, cancer causing, or cancer promoting in healthy nonsmokers, and for which there is no known safe level of exposure. Numerous courts have held that involuntary exposure to an environment which may cause disease or death is violative of the Eighth Amendment. Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (lack of adequate ventilation and air flow); Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir. 1983) (intentionally subjecting inmates to cold, rainy, roach-infested facility); Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.) (constant exposure of inmates to persons with contagious diseases), cert. dismissed, 453 U.S. 950, 69 L. Ed. 2d 1033, 102 S. Ct. 27 (1981), rev'd on other grounds, 790 F.2d 1174, 1175 (5th Cir. 1986); Cunningham v. Jones, supra, 567 F.2d at 660 (restricting inmates to meals with insufficient calories to maintain health); Gates v. Collier, 349 F. Supp. 881, 894 (N.D. Miss. 1972) (confinement in barracks that threaten physical health), aff'd 501 F.2d 1291 (5th Cir. 1973). Therefore, if the weight of scientific authority is such that there may be significant health consequences from involuntary exposure to tobacco smoke, then plaintiff's claim rises beyond mere discomfort and becomes punishment cognizable under the Eighth Amendment.

[35] Investigation into the adverse health effects of the direct ingestion of tobacco smoke began in earnest with the release of the first Surgeon General's Report in 1964, which indicated a possible link between the direct ingestion of tobacco smoke and lung cancer. *fn4" As a result of this report, Congress mandated that a warning concerning the possible link between smoking and adverse health effects be placed on cigarette packages. *fn5"

[36] In 1970, in response to mounting scientific evidence that tobacco smoke did indeed have adverse health effects, Congress strengthened the warnings to state unequivocally that smoking tobacco was dangerous to health. *fn6" It is now generally accepted within the scientific community that the direct ingestion of tobacco smoke results in adverse health effects, see Public Health Service, U.S. Dep't of Health, Educ., and Welfare, The Health Consequences of Smoking, A Report of the Surgeon General 117-35 (1972), *fn7" and the focus of scientific research into the health consequences of tobacco smoke is presently shifting toward the effects of environmental tobacco smoke on nonsmokers.

[37] In 1986 the Surgeon General released a report entitled "The Health Consequences Of Involuntary Smoking" (hereinafter "1986 Report"). *fn8" The preface to the 1986 report states: "It is now clear that disease risk due to the inhalation of tobacco smoke is not limited to the individual who is smoking, but can extend to those who inhale tobacco smoke emitted into the air." The report itself reaches three major conclusions: (1) that involuntary smoking is a cause of disease, including lung cancer, in healthy nonsmokers; (2) that the children of parents who smoke compared with the children of nonsmoking parents have an increased frequency of respiratory infections, increased respiratory symptoms, and slightly smaller rates of increased lung function as their lungs mature; and (3) that the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate, the exposure of nonsmokers to environmental tobacco smoke. Id. at 7. On the strength of the research contained in the report and the conclusions which are drawn, the Surgeon General states,

[38]

the time for delay is past; measures to protect the public health are required now. The scientific case against involuntary smoking as a health risk is more than sufficient to justify appropriate remedial action, and the goal of any remedial action must be to protect the non-smoker from environmental tobacco smoke.



[39] Id. at xii; see also Special Projects Office of the Health Program, Office of Technology Assessment, United States Congress, Passive Smoking in the Workplace: Selected Issues (May 1986); Robertson & Burge, Building Sickness - All In The Mind ?, Occupational Health, March 1986, at 78; Godish, Indoor Air Pollution in Offices and Other Non-Residential Buildings, 48 J. of Envtl. Health 190-95 (No. 4, 1986).

[40] The Surgeon General's 1986 conclusion is not without its critics. A review of the literature on the health effects of ETS by W. Allan Crawford, Ph.D., an independent consultant in Occupational and Environmental Health, Sydney, Australia, concluded: "With the possible exception of infants who are 1 yr old or less, available data do not meet the criteria for scientific and public health decisions." Crawford, On the Health Effects Of Environmental Tobacco Smoke, Archives of Envtl. Health, 34 (1987) (and references cited therein).

[41] Plaintiff, therefore, presents this Court with a question which is generating a significant dispute among recognized scientific authorities. If the Surgeon General is correct, plaintiff is being exposed to an environment which may be implanting within him a biological time bomb which could go off shortly after, or years after, the end of his term of incarceration.

[42] The Court's research has disclosed only three Eighth Amendment cases relevant to the question of whether ETS may be considered punishment. *fn9" In the first case, Lee v. Carlson, 645 F. Supp. 1430 (S.D.N.Y. 1986), aff'd mem., 812 F.2d 712 (2d Cir. 1987), the court dismissed the action without reaching the merits of the Eighth Amendment claim, reasoning that the defendants enjoyed qualified immunity. Id. at 1438. In the second case, Beeson v. Johnson, 668 F. Supp. 498 (E.D.N.C. 1987), the Court construed an inmate's ETS claim as deliberate indifference to medical care because the inmate was suffering from a preexisting medical condition, and thus avoided the constitutional issues here in controversy. Id. at 500.

[43] The third case, Sampson v. King, 693 F.2d 566 (5th Cir. 1982), involved the use of pesticides at a prison farm. Plaintiff alleged that his exposure while working in the fields to the pesticide Parathion constituted cruel and unusual punishment. The district court granted damages and an injunction prohibiting further use of the pesticide. On appeal, the Fifth Circuit Court of Appeals reversed.

[44] The court of appeals began its analysis by noting, in light of Rhodes, that prison conditions must be evaluated on the basis of objective factors as weighed against contemporary standards of decency. Id. at 569. The court then noted that the state has a responsibility to protect the safety of prisoners, but declined to hold the operation of a prison to the same safety and health standards applicable to private industry. Id. The court reasoned that because Parathion was regularly used by private farmers, and because there was no showing that prison officials knew or should have known that the pesticide was dangerous, granting of the injunction was an abuse of discretion. Id. The court concluded by dismissing the damages claim because plaintiff had failed to show that defendants had violated any clearly established law. Id.