The opinion of the court was delivered by: REVERCOMB
GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE
Plaintiff L. Daniel Caldwell, a former inmate incarcerated in the United States Penitentiary in Marion, Illinois,
brings this pro se civil rights complaint against the Director of Federal Bureau of Prisons ("Director"). In his complaint, plaintiff, a nonsmoker, claims that his frequent exposure to passive tobacco smoke violates his Eighth Amendment, Due Process and Equal Protection rights. Plaintiff seeks a declaratory judgment that defendant's actions are unconstitutional and an injunction requiring defendant to provide plaintiff with a completely smoke-free environment. At bar is defendant Director's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The Federal Bureau of Prisons has not been indifferent to nonsmoking inmates. Federal regulations provide that
"The Warden, as set forth in this rule, may establish smoking/no smoking areas with the institution.
(a) Smoking is prohibited in those areas where to allow smoking would pose a hazard to health or safety.
(b) Smoking/no smoking areas may be established in other areas of the institution, in the discretion of the Warden." 28 C.F.R. § 551.160 (1988).
At the time plaintiff's complaint was filed, the Warden at Marion had established a nonsmoking/smoking policy designed to accommodate the concerns of both "individuals who choose to smoke or not to smoke." Institutional Supplement No. Mar. 1653.1, United States Penitentiary, Marion, Illinois, August 18, 1986 (" Supplement "). Among other things, the Marion policy designated conference rooms and classrooms, elevators and the library as "nonsmoking" areas; it divided the dining hall into "smoking" and "nonsmoking" areas; and let inmates determine whether office and workplace areas would be "smoking" or "nonsmoking." Finally, the Warden ordered that two of the prison's modular housing units be designated as "nonsmoking" areas and urged that "every effort . . . be made to identify [the] Camp inmates who desire to be placed in the 'No-Smoking' unit and accommodate their placement in the unit on a space-available basis." Supplement, para. 4(C).
Despite these efforts, plaintiff Caldwell complains that he has been exposed to second-hand smoke. He has occasionally been confined in a two-man cell and/or a dormitory room along with tobacco smokers. He eventually was confined to a single-man cell because he was a nonsmoker, but complains that second-hand smoke drifted over from near-by "smoking" cells. Plaintiff also alleges that second-hand smoke drifted over to the "nonsmoking" sites in the common areas. He further complains of exposure to passive smoke while being transported to and from various prison facilities. Plaintiff asks this Court to order the Director of the Federal Bureau of Prisons to create a totally smoke-free environment for nonsmoking inmates and to separate nonsmokers from smokers in cells, cellhouses, workplaces, indoor recreation areas and all forms of transport throughout the federal correctional system.
The operation of our correctional facilities is "peculiarly within the province of the legislative and executive branches of our government," not the judicial branch. Procunier v. Martinez, 416 U.S. 396, 405, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), overruled on other grounds in Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989). The "inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution, or in the case of a federal prison, a statute. The wide range of 'judgment calls' that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government." Bell v. Wolfish, 441 U.S. 520, 562, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1970). With these principles in mind, the Court now examines the claims made in this case.
A. Eighth Amendment Claims
While the authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishment, they made no attempt to define the contours of that prohibition. See Rhodes v. Chapman, 452 U.S. 337, 345-346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). Instead the Amendment draws "its meaning from the evolving standards of decency that mark the progress ...