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CROWDER v. KELLY

May 21, 1996

DONALD K. CROWDER, et al., Plaintiff,
v.
SHARON PRATT KELLY, et al., Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on Plaintiffs' motion for a preliminary injunction. Plaintiffs are current and former prisoners at the Ococoqan, Medium and Minimum Security facilities of the District of Columbia's Lorton Correctional Complex ("Lorton") in Lorton, Virginia. *fn1" Plaintiffs are non-smokers who allege that while incarcerated at Lorton, they have been subjected to high levels of environmental tobacco smoke ("ETS") in violation of the Eighth Amendment to the Constitution and 42 U.S.C. § 1983. On May 17, 1996, this Court held a hearing on this motion. Both parties submitted affidavits. Neither the Plaintiffs nor the Defendants called any witnesses to be beard in court.

 STANDARD FOR PRELIMINARY INJUNCTION

 In order to prevail on a motion for a preliminary injunction, a plaintiff must demonstrate: 1) substantial likelihood of success on the merits; 2) irreparable harm if the injunction is not granted; 3) other interested parties will not suffer substantial harm if the injunction is granted; and 4) the public interest will be furthered by the injunction. Containers Ltd. v. Stena AB, 281 U.S. App. D.C. 400, 890 F.2d 1205, 1208 (D.C. Cir. 1989).

 FACTS

 Plaintiffs are non-smokers who allege that while incarcerated at Lorton, they have been subjected to high levels of ETS. The Plaintiffs claim that the District of Columbia has failed to enforce its existing non-smoking policy for Lorton.

 By Memorandum dated January 31, 1992, the Director of the Department of Administrative Service for the District of Columbia advised the heads of all departments and agencies that District of Columbia Law required that they "establish a smoke free work environment" *fn2" In enacting this policy, the District of Columbia stated:

 
"The District is deeply concerned about the health and welfare of it employees and the public whom they serve and is dedicated to providing a safe, healthy work environment. The health risks of smoking and exposure to smoke are clearly documented by reports of the U.S. Attorney General. The District accepts the current evidence that: passive smoke is a cause of disease, including lung cancer, in healthy nonsmokers, and, the simple separation of smokers and nonsmokers within the same air space may reduce, but does not eliminate the exposure of nonsmokers to environmental tobacco smoke."

 This policy was adopted by the Department of Correction in Department of Corrections Operating Procedure 6060.1. *fn3"

 In relevant part, this procedure provides:

 
1. Smoking shall only be permitted in designated smoking areas. These designated smoking areas must be separated by a physical barrier or a separate room to minimize smoke in nonsmoking areas. Ventilation shall be in compliance with the District laws and regulations that govern indoor ventilation.

 Plaintiffs have submitted unrefuted sworn affidavits detailing their exposure to ETS. It is clear form these affidavits that the smoking policy is not being enforced. As the affidavits state "Smoking occurs everywhere and anywhere at Lorton. There are plenty of smokers, even in Dorm 2, which is supposed to be a non-smoking dorm." (Ashford Aff. P4). "Both prisoners and guards smoke nonchalantly at Minimum. There is total disregard of the nonsmoking policy which is supposed to be in effect at Minimum." (Smith Aff. P3). "I have seen prisoners smoking***There are widespread violations of the nonsmoking policy***" (Dawson Aff. P3). "Prisoners and guards smoke in areas where smoking is supposed to be outlawed. In spite of this fact, prison officials have failed to reprimand or 'write up' prisoners for smoking" (Roy Aff. P4). "The television room looks like a nightclub because of the heavy clouds of tobacco smoke from the inmates who smoke cigarettes while watching television." Smith Aff. P4).

 The effect of this lack of enforcement is particularly harsh on those prisoners with pre-existing medical conditions. Plaintiff, Benjamin W. Scott, an insulin dependant diabetic, submitted a sworn affidavit attesting to the fact that disregard of the nonsmoking policy is so pervasive, that he must sweep cigarette butts from underneath his bed each evening. (Scott Aff. P4). Plaintiff John Roy, who suffers from tuberculosis continues to be exposed to ETS. (Roy Aff. at 4). Inmates have submitted repeated requests for transfer to non-smoking areas and such requests have been denied. (Ashford Aff. P6, Dawson Aff. P5, Scott Aff. P5). There are no barriers, as required by the Department of Corrections procedure to separate smokers from non-smokers. (Smith Aff. P5). Ventilation is inadequate to clear the ETS. (Dawson Aff. P4). It is ...


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