McKinney v. Anderson

Decision Date06 November 1990
Docket NumberNo. 89-16589,89-16589
PartiesWilliam McKINNEY, Plaintiff-Appellant, v. Pat ANDERSON; Carol Ployer; H.L. Whitley; George W. Sumner; John Nye, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

William McKinney, Carson City, Nev., in pro per.

Kevin G. Higgins, Deputy Atty. Gen., Carson City, Nev., for defendants-appellees.

Before BROWNING, PREGERSON, and TROTT, Circuit Judges.

PREGERSON, Circuit Judge:

William McKinney, a prisoner in Nevada state prison in Carson City, filed a pro se civil rights complaint in United States District Court under 42 U.S.C. Sec. 1983. McKinney, a non-smoker, alleged that he is almost constantly exposed to secondary cigarette smoke, also known as environmental tobacco smoke (ETS), because he is housed with a heavy smoker and there are no restrictions on smoking in the prison. McKinney complained that the exposure to ETS caused him nosebleeds, headaches, chest pains, and loss of energy. McKinney stated that the prison officials repeatedly denied his requests to be transferred to a single room or to be housed with a non-smoker.

McKinney asserts two distinct Eighth Amendment claims. First, he alleged that prison officials were deliberately indifferent to his serious existing medical symptoms, which he asserts were caused by exposure to ETS. Second, he asserts that his exposure to ETS constitutes cruel and unusual punishment. McKinney also asserts that prison officials denied him due process of law by their refusal to apply a Nevada anti-smoking statute to the prison library. McKinney sought damages and injunctive relief to remedy the alleged violations of his constitutional rights.

Individuals named as defendants are George Sumner, the director of the prison; H.L. Whitley, the warden; Pat Anderson, the associate warden; Carol Ployer, a unit counselor; and John Nye, the store manager at the prison. 1 All are employees of the Nevada Department of Prisons.

All proceedings in this action were conducted before a magistrate. Pursuant to Fed.R.Civ.P. 65, she consolidated McKinney's motion for preliminary injunctive relief with the trial on the merits. The magistrate also denied McKinney's motion to appoint an expert to testify about the health effects of ETS, and granted the defendants' motion in limine narrowing the issues to be tried.

The court allowed McKinney to proceed on two issues: whether he had a constitutional right to be housed in a smoke-free environment, and whether defendants were indifferent to his serious medical needs. Both before and during trial, McKinney sought to litigate the degree of his exposure to ETS and the actual and potential effects of such exposure on his health. The magistrate, however, excluded evidence that did not relate to McKinney's current medical symptoms, including documentation of the potential health effects of exposure to ETS.

After McKinney presented his evidence to a jury, the defendants moved for a directed verdict on the ground that McKinney failed to produce any evidence to support his claim that the defendants were deliberately indifferent to his serious medical symptoms. The magistrate granted the motion. The district court found that, as a matter of law, McKinney had no constitutional right to be free of secondary cigarette smoke. The magistrate framed the issue in all-or-nothing terms: either McKinney had a constitutional right to a completely smoke-free environment, or he had only a constitutional right to medical attention for proven serious medical needs. By so doing, the magistrate excluded a valid eighth amendment claim lying between these two extremes: that compelled exposure to levels of ETS that pose an unreasonable risk of harm to human health constitutes cruel and unusual punishment.

McKinney filed a notice of appeal 2 and requested that the government provide him with a transcript of the trial. The magistrate denied this request.

On appeal, McKinney raises the following arguments:

(1) that the magistrate erred in holding that, as a matter of law, compelled exposure to ETS does not violate a prisoner's constitutional rights;

(2) that the magistrate erred in holding that the Nevada anti-smoking statute does not apply to state prison libraries;

(3) that the magistrate erred in refusing to appoint an expert witness to testify about the health effects of exposure to ETS;

(4) that the magistrate erred in entering a directed verdict in favor of the defendants on the claim of deliberate indifference to serious medical symptoms; and

(5) that the magistrate erred in denying McKinney's request for production of a trial transcript at government expense.

DISCUSSION
A. Does a Prisoner Have a Constitutional Right to Be Free of Exposure to Levels of ETS that Pose an Unreasonable Risk of Harm to His Health?

In her order granting defendants' motion for a directed verdict, the magistrate declared that there is no constitutional right for an inmate to be free from secondary cigarette smoke. The magistrate ruled that a prisoner can show a constitutional violation from involuntary exposure to ETS only by proving that the state was deliberately indifferent to his serious, immediate medical symptoms. We disagree. For the reasons that follow, we conclude that, even if an inmate cannot show that he suffers from serious, immediate medical symptoms caused by exposure It is unquestioned that the Eighth Amendment's bar on cruel and unusual punishments proscribes more than just barbarous physical punishments. Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). The Eighth Amendment prohibits penalties that transgress today's "broad and idealistic concepts of dignity, civilized standards, humanity, and decency...." Id. (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). It is also undisputed that the conditions of confinement in a prison are subject to scrutiny under Eighth Amendment standards. Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d 522 (1978). When the state takes a person into its custody, who by reason of the deprivation of his liberty cannot care for himself, the Constitution imposes upon the state a corresponding duty to assume responsibility for the prisoner's safety and well-being. Estelle, 429 U.S. at 103-104, 97 S.Ct. at 290-291; Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir.1985).

to ETS, compelled exposure to ETS is nonetheless cruel and unusual punishment if it is at such levels and under such circumstances as to pose an unreasonable risk of harm to an inmate's health.

The Supreme Court in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), discussed the standard by which courts must examine an Eighth Amendment claim:

No static "test" can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." The Court has held, however, that "Eighth Amendment judgments should neither be nor appear to be merely the subjective views" of judges. To be sure, "the Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability" of a given punishment. But such " 'judgment[s] should be informed by objective factors to the maximum possible extent.' "

Id. at 346, 101 S.Ct. at 2399 (citations omitted). We must therefore determine, judging by objective factors and measured against our society's evolving standards of decency, whether it is cruel and unusual punishment to confine an inmate in a prison where he is exposed to levels of ETS that pose an unreasonable risk of harm to his health.

In this circuit, it is established that exposure to ETS by people who are sensitive to ETS because of pre-existing conditions may constitute cruel and unusual punishment. In Franklin v. State of Oregon, 662 F.2d 1337, 1346-47 (9th Cir.1981), we held that housing an inmate suffering from throat cancer with a smoker may violate the Eighth Amendment. We have not examined the question whether an inmate who is not suffering from a pre-existing condition may state a valid cause of action under the Eighth Amendment by alleging that continual involuntary exposure to ETS poses an unreasonable risk of harm to his health.

In Avery v. Powell, 695 F.Supp. 632 (D.N.H.1988), the district court declined to dismiss an Eighth Amendment claim based on exposure to ETS. The court first determined that, because widely accepted scientific evidence shows that ETS poses health hazards, unwanted exposure to ETS may be a punishment within the meaning of the Eighth Amendment. Id. at 639. The court then ruled that our society's attitudes have evolved to the point that unwanted exposure to ETS may amount to a violation of "society's evolving standards of decency." Id. at 639-40. The court noted that, as of 1987, forty-five states and the District of Columbia had enacted laws restricting smoking. Id. at 640. In addition, the court noted that the federal government has enacted laws and regulations aimed at reducing involuntary exposure to ETS on common carriers and in buildings that the government controls and operates, including federal prisons. Id.

In Clemmons v. Bohannon, 918 F.2d 858, reh'g en banc granted, 1990 WL 146949, 1990 U.S.App. LEXIS 20375 (10th Cir.1990), the Tenth Circuit agreed with Avery in holding that indefinite double-celling We agree with the reasoning in Avery and Clemmons. The following discussion explains that: (1) scientific evidence has rapidly accumulated in the last few years regarding the adverse health effects resulting from exposure to ETS; (2) the health consequences from exposure to ETS are magnified in prison settings because of the nearly constant exposure of inmates to elevated levels of ETS; (3) we have long recognized that conditions of confinement...

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