Avery v. Powell

Decision Date29 August 1988
Docket NumberCiv. No. 88-7-D.
Citation695 F. Supp. 632
CourtU.S. District Court — District of New Hampshire
PartiesClifford 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.

Clifford Avery, Concord, N.H., pro se.

Dennis R. Cookish, Concord, N.H., pro se.

Daniel J. Mullen, Asst. Atty. Gen., Concord, N.H., for defendants.


DEVINE, Chief Judge.

Plaintiff Clifford Avery, an inmate incarcerated in the New Hampshire State Prison ("NHSP"),1 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.

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.

I. Defendants' Motion to Dismiss

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.

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, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (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, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (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.

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.

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.

A. The Eighth Amendment Claim

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,2Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 545, 99 S.Ct. 1861, 1872 n. 16, 1877, 60 L.Ed.2d 447 (1979); see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).

The Eighth Amendment proscribes punishment that is cruel and unusual, Thompson v. Oklahoma, ___ U.S. ___, 108 S.Ct. 2687, 2691, 101 L.Ed.2d 702 (1988) (plurality opinion); Rhodes v. Chapman, 452 U.S. 337, 345, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (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, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (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, 101 S.Ct. at 2398 (citation omitted).

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

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.'

Id. at 346, 101 S.Ct. at 2399 (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.,3 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, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)). See also Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (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.").

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, 101 S.Ct. at 2399 (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, 101 S.Ct. at 2409 & n. 12 (Brennan, J., concurring) (citing Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982 (1977)) (plurality opinion).

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

"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.'"

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, 101 S.Ct. at 2399), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984).

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.

1. ETS as Punishment

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.

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, 103 S.Ct. at 2983, and it is punishment that is subject to scrutiny under the Eighth Amendment, Hutto v. Finney, 437...

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