McIntyre v. Robinson

• Citation: 126 F.Supp.2d 394
• Decision Date: 21 November 2000
• Docket Number: No. CIV. PJM 94-2871.,No. CIV. PJM 98-4109.,No. CIV. PJM 95-190.,CIV. PJM 95-190.,CIV. PJM 94-2871.,CIV. PJM 98-4109.
• Parties: Carole Anne MCINTYRE, et al., Plaintiffs, v. Bishop L. ROBINSON, et al., Defendants. Stephen M. Johnson, et al., Plaintiffs, v. Bishop L. Robinson, et al., Defendants. Desmond Malcolm, Plaintiff, v. Parris Glendening, et al., Defendants.
• Court: U.S. District Court — District of Maryland

126 F.Supp.2d 394

Carole Anne MCINTYRE, et al., Plaintiffs, v. Bishop L. ROBINSON, et al., Defendants.

Stephen M. Johnson, et al., Plaintiffs, v. Bishop L. Robinson, et al., Defendants.

Desmond Malcolm, Plaintiff, v. Parris Glendening, et al., Defendants.

No. CIV. PJM 95-190.

No. CIV. PJM 94-2871.

No. CIV. PJM 98-4109.

United States District Court, D. Maryland.

November 21, 2000.

COPYRIGHT MATERIAL OMITTED

Samuel Louis Israel, Levan, Schimel, et al., Columbia, MD, Andrew David Freeman, Brown, Goldstein & Levy, Therese L. Staudenmaier, Baltimore, MD, for Plaintiffs.

Carole Ann McIntyre, Columbia, MD, Pro se.

Desmond W. Malcolm, Westover, MD, Pro se.

J. Joseph Curran, Jr., Stephanie Judith Lane-Weber, Office of the Attorney General, Baltimore, MD, for Defendants.

Lisa Ann Rohn, Jessup, MD, Pro se.

OPINION

MESSITTE, District Judge.

The Plaintiffs in these consolidated cases are current or former prisoners of the State of Maryland.¹ They allege that during the course of their confinement they have been involuntarily exposed to "environmental tobacco smoke" (ETS) to an extent violative of the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 794. With one exception, Defendants are or have been correctional administrators employed by the State of Maryland.² Plaintiffs seek (1) a declaration that Defendants' written smoking policies and practices regarding smoking violate the Eighth Amendment; (2) an injunction that either prohibits Defendants from allowing smoking inside state correctional institutions or from any areas in which Plaintiffs spend time or that requires that Plaintiffs be offered housing in a tobacco-free facility; and (3) an award of compensatory and punitive damages, costs, and attorneys' fees.

In early 1998 Plaintiffs filed a Motion for Summary Judgment, Preliminary Injunction, and Permanent Injunction, to which Defendants responded by filing their own Motion to Dismiss or, in the Alternative, for Summary Judgment. The Court referred these Motions to Magistrate Judge Jillyn K. Schulze for a hearing and recommended findings of fact and conclusions of law. The parties later withdrew their Motions in light of Judge Schulze's orders reopening discovery and allowing Plaintiffs to file a Second Amended Complaint adding the ADA and Rehabilitation Act claims, then renewed their Motions after the additional discovery period ended.

Judge Schulze has held a hearing and has issued her Report and Recommendation. In it, she recommends that Plaintiffs' Motion be granted as to the declaratory and injunctive relief they seek but denied as to damages. She recommends that Defendants' Motion be denied as to their liability for declaratory and injunctive relief and certain damage claims, but granted as to other damage claims. The parties have filed objections to Judge Schulze's recommendations which the Court now considers.

The Court will SUSTAIN certain of Defendants' objections and OVERRULE others. It will OVERRULE Plaintiffs' objections. The net result is that the Motions of both sides will DENIED as to declaratory and injunctive relief, Plaintiffs' Motion will be DENIED as to damages, and Defendants' Motion will be GRANTED as to certain of Plaintiffs' damage claims and DENIED as to others.

I. Facts

On October 1, 1987, Defendant Robinson, as Secretary of the Maryland Department of Public Safety and Correctional Services, issued a directive stating that "reliable medical evidence reveals that smoking is hazardous not only to the health of those who smoke, but also can adversely impact the health of nonsmokers exposed to smoke from tobacco products." The directive imposed several restrictions on smoking by department employees. In 1992, after Governor William Donald Schaefer banned smoking in all state facilities other than those housing clients, patients, inmates and wards of the State, Robinson issued a further directive banning indoor smoking by Division of Correction employees and visitors. Prison administrators were ordered to designate, clearly mark, and adequately ventilate indoor smoking areas and were instructed to prohibit indoor smoking in all areas not so designated. The directive noted that "[s]trong evidence exists that smoking is a proven cause of cancer in smokers and non-smokers alike" and that "tobacco smoke can aggravate cardiac, respiratory, and allergic conditions suffered by these same groups, shortening their life spans and its [sic] qualities." After the Maryland Department of Licensing and Regulations prohibited smoking in enclosed workplaces based on its finding that ETS causes lung cancer and increases heart disease in non-smokers, Robinson, effective July 1, 1995, banned all indoor smoking in Maryland prisons.

Plaintiffs have produced evidence that, despite the ban on indoor smoking, ETS remains prevalent in Maryland prisons. Dr. S. Katherine Hammond, an industrial hygienist with expertise in measuring airborne nicotine levels as a marker for ETS, analyzed readings taken from a total of seven nicotine monitors placed among cells and day rooms at the Roxbury Correctional Institution (RCI), the Eastern Correctional Institution (ECI) and the Maryland Correctional Institution — Jessup (MCI-J).³ According to her report, the nicotine measurements ranged from a low of 1.8 micrograms per cubic meter (ug/m3) to a high of 13.3 ug/m3,⁴ with four of the seven monitors showing nicotine concentrations higher than 2.3 ug/m3.⁵ In addition, two of three urine samples Plaintiffs submitted for analysis in September 1998 contained levels of cotinine (the primary metabolite of nicotine)⁶ indicating "heavy exposure to ETS in the days prior to sample collection."⁷ Plaintiffs have submitted numerous affidavits by inmates and correctional officers attesting to the existence of ETS in Maryland prisons.

Defendants have offered counterevidence on the issue of ETS levels. Their expert, Dirk F. Moore, Ph.D., a biostatistician and assistant professor in the Department of Statistics at Temple University, points out several problems with the sampling methodology Dr. Hammond used to obtain her nicotine measurements. These include her failure to: (1) follow her normal practice of inspecting the site before sampling; (2) supervise placement of the monitors; (3) account for variations in ventilation by only collecting samples during a single seven-to-ten day period in the middle of winter; (4) assess measurement error; (5) use control monitors to test the accuracy of the measurements; and (6) adequately address the possibility of tampering. As a result, Dr. Moore concludes that the actual ETS exposure experienced by inmates "could have been substantially lower than reported." Defendants also cite tests performed on urine samples provided by several of the Plaintiffs in 1995, before Secretary Robinson banned indoor smoking entirely, which indicated that only one Plaintiff, if any, had been exposed to more than a minimal amount of ETS.⁸ Additionally, Defendants cite their own deposition testimony and affidavits to the effect that personally they have encountered little evidence of ETS and have received few complaints about it.

Plaintiffs have produced evidence that exposure to ETS has had and will continue to have an adverse impact on their health.⁹ Alfred Munzer, M.D., a physician specializing in internal medicine, pulmonary medicine, and critical care, has reviewed what he deemed to be relevant portions of each Plaintiff's medical records and affirms that each suffers from a variety of conditions which Dr. Munzer concludes were either caused or aggravated by exposure to ETS in prison.¹⁰ As for Plaintiffs' future health, Dr. Munzer and James Repace, M.Sc., a consulting health physicist with more than thirty published peer-reviewed articles on ETS, state that exposure to the levels of ETS indicated by Dr. Hammond's report and the 1998 urinalyses has caused Plaintiffs Johnson, Minniefield-El, and Lloyd to incur increased risks of lung cancer, heart disease, respiratory disease, stroke, and heart attacks.¹¹ Defendants do not argue that Plaintiffs' alleged maladies are illusory. What they do challenge, however, is the sufficiency of Dr. Munzer's basis for contending that Plaintiffs' conditions were caused or aggravated by ETS. Among other things, Defendants point out that the predictions made by Dr. Munzer and Mr. Repace concerning Plaintiffs' future health are based primarily on Dr. Hammond's measurement of airborne nicotine levels which their expert Dr. Moore has shown to be flawed and unreliable.

Plaintiffs also submit that Defendants were aware of the hazards posed by ETS. Defendants make what they contend is an important distinction. While acknowledging the existence of scientific and medical studies indicating a connection between ETS exposure and increased risks of lung cancer and heart disease, they insist that, inasmuch as they are not scientists or medical experts, they have been unable to determine whether the increases in risk demonstrated by these studies qualify as significant. Moreover, while some Defendants admit their awareness of a connection between ETS and disease, others state that they are not aware of any proven link between ETS exposure and serious health problems.

Finally, Plaintiffs call attention to numerous complaints and requests for administrative action they have made to prison authorities, including requests for cell changes due to ETS exposure, the majority of which allegedly were not acted upon and none of which resulted in stepped-up efforts by Defendants to enforce the ban on smoking. Defendants counter that Plaintiffs are a particularly litigious group whose complaints have often been frivolous and/or lacking in medical support, and which in several instances have been dismissed because Plaintiffs failed to follow through on them. As for their efforts to enforce...