Steading v. Thompson, 90-2588
| Citation | 941 F.2d 498 |
| Decision Date | 19 August 1991 |
| Docket Number | No. 90-2588,90-2588 |
| Parties | David Mitchell STEADING, Plaintiff-Appellant, v. James R. THOMPSON, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
David M. Steading, pro se.
Dan Softcheck, Asst. Atty. Gen., Robert G. Toews, Aaron T. Shepley, Lenard C. Swanson, Brian W. Lewis, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendants-appellees.
Before WOOD, Jr., EASTERBROOK, and KANNE, Circuit Judges.
David Steading, a prisoner of Illinois, objects to the tobacco smoke he encounters in captivity. The asthmatic Steading cannot escape the smoke the guards and his fellow prisoners produce. He filed this action under 42 U.S.C. § 1983 against the Governor and officials of the Department of Corrections, seeking both damages and prospective relief on the ground that the presence of smoke in the air is cruel and unusual punishment, offending the eighth amendment (). He also named Brown & Williamson Tobacco Corp., whose loose tobacco (under the brand names Bugler and Kite) is sold to Illinois, which resells it in prison commissaries so that prisoners may roll their own cigarettes. The district judge terminated the case on the pleadings under Fed.R.Civ.P. 12(b)(6), holding that Brown & Williamson did not act under color of state law and that even if ambient tobacco smoke is harmful Steading could not possibly establish that the defendants possessed the mental state necessary to show that exposure to smoke is a form of "punishment".
Since filing his complaint Steading has been transferred from the Sheridan Correctional Center to the Danville Correctional Center. That transfer does not affect Steading's request for damages, and the defendants do not argue that it affects his request for equitable relief either. So far as we are aware, no prison in Illinois is smoke-free (or even has large portions set aside for non-smokers), so Steading retains an interest adverse to the defendants. At all events, unless Steading has some chance of prevailing on his legal claims, it is unnecessary to decide whether the equitable claims should be carved off. We start, then, with Steading's demand for damages.
Judgment in favor of Brown & Williamson is clearly correct. A private firm does not become a state actor by selling its products to the government. Rendell-Baker v. Kohn, 457 U.S. 830, 840-41, 102 S.Ct. 2764, 2770-71, 73 L.Ed.2d 418 (1982). Judgment in favor of the other defendants is more problematic. Although two courts of appeals have held or implied that exposure to tobacco smoke does not violate the eighth amendment, Wilson v. Lynaugh, 878 F.2d 846, 851 (5th Cir.1989); Caldwell v. Quinlan, 729 F.Supp. 4 (D.D.C.), affirmed without opinion, 923 F.2d 200 (D.C.Cir.1990), two others have ordered district courts to hold trials to determine the effects of cigarette smoke. McKinney v. Anderson, 924 F.2d 1500 (9th Cir.1991); Clemmons v. Bohannon, 918 F.2d 858 (10th Cir.), rehearing in banc granted, 918 F.2d 858 (1990). Developments since the Ninth and Tenth Circuits issued their opinions enable us to break this tie in favor of the district court's disposition.
Both McKinney and Clemmons depend on the proposition that prison conditions may violate the eighth amendment even though the prisoner cannot establish that anyone devised those conditions (or permitted them to persist) in order to inflict punishment. The Tenth Circuit wrote that 918 F.2d at 863, 865. It remanded for a trial at which a jury would determine whether the risks created by smoking are "unreasonable". That inquiry is, depending on your view of products liability law, either a negligence standard or one of strict liability under § 402A of the Restatement (2d) of Torts. McKinney approached the problem from the same perspective but omitted the Tenth Circuit's explanation of the standards it was using.
Wilson v. Seiter, --- U.S. ----, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), holds that neither negligence nor strict liability is the appropriate inquiry in prison-conditions cases. Wilson explains that prisoners who contest the conditions of their confinement under the eighth amendment must establish that their custodians either established the conditions to inflict wanton pain or are deliberately indifferent to whether the conditions have these effects. The eighth amendment is concerned with "punishment", and the...
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