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CROWDER v. DISTRICT OF COLUMBIA

March 17, 1997

DONALD CROWDER, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: SPORKIN

 Plaintiffs, *fn1" inmates in the custody of the District of Columbia Department of Corrections, brought these consolidated actions pursuant to 42 U.S.C. § 1983, claiming that the defendant District of Columbia *fn2" has violated their constitutional and statutory *fn3" rights by failing to enforce nonsmoking policies in certain Department of Corrections facilities and by exposing them to environmental tobacco smoke (ETS), commonly known as second-hand smoke. On May 21, 1996, the Court entered a preliminary injunction, ordering the defendant to "immediately transfer the Plaintiffs . . . into non-smoking quarters" and "enforce its non-smoking policy as set forth in Department of Corrections Operating Procedure (D.O.P.) 6060.1 *fn4" and discipline prisoners and guards who violate the policy." Crowder v. Kelly, 928 F. Supp. 2, 7 (1996). The Court has now held a trial on whether to issue a permanent injunction and makes the following findings of fact and conclusions of law.

 Findings of Fact

 Plaintiffs Smith, Scott and Dawson are inmates in the custody of the D.C. Department of Corrections. During the period of their incarceration, Plaintiffs have at various times been housed in areas where many other inmates smoke. Witnesses for the defendant testified that up to 95 percent of inmates smoke, as well as many correctional officers. Many prisoners are housed in dormitory-style units with dozens of inmates in one room. During any one night, nonsmokers in those units are exposed to the poisonous toxins from countless cigarettes. Even when kept in so-called non-smoking areas, Plaintiffs have been exposed to smoke from prisoners and correctional officers who violate the rules, and from smoke that sifts in from smoking areas. Smoking is also prevalent in common areas, particularly in television rooms.

 Plaintiff Scott is an insulin-dependent diabetic whose condition is aggravated by ETS. Plaintiff Smith has suffered shortness of breath and headaches due to ETS. Smith has also suffered some chest pains. Plaintiff Dawson has been treated for thyroid cancer. That condition is now in remission, although Dawson still takes medications for the condition. Dawson also has a history of asthma.

 The Court heard expert testimony from Doctor Albert Munzer, an expert on the effects of second-hand smoke and a former president of the American Lung Association. His uncontroverted testimony is fully credited. In 28 years of practice, Dr. Munzer has treated several hundred cases of lung cancer. In several of those cases, patients who have never smoked have nevertheless contracted lung cancer that can be traced to second-hand smoke. Dr. Munzer testified that "exposure to second-hand smoke can reasonably be expected to aggravate the condition[of a] person with diabetes." Tr. 11/5/96 at 17. He further testified that ETS "absolutely" had an adverse effect on asthmatics, in that it exacerbates the condition. Finally, he testified that second-hand smoke would have an adverse effect on a healthy person. Specifically, he stated that second-hand smoke has been implicated in the development of lung cancer and deep respiratory infections in otherwise healthy people.

 The testimony further showed that the adoption of Department of Corrections D.O.P. 6060.1, designed to establish certain smoke-free areas, did not materially improve conditions. Any advances toward significantly ameliorating the smoking problem within the Department of Corrections facilities occurred only after and because of this Court's preliminary injunction issued on May 21, 1996.

 Conclusions of Law

 The Supreme Court addressed Eighth Amendment claims of excessive ETS exposure in Helling v. McKinney, 509 U.S. 25, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993). The Court held that upon an appropriate factual showing, a prisoner can make out an ETS exposure claim under the Eighth Amendment. The Court laid out a two-prong test that is to be applied to such claims. *fn5" The first prong is an objective factor: the prisoner must show that he himself is being exposed to unreasonably high levels of ETS. Id. at 35. The second prong is a subjective factor: the prison officials must have shown "deliberate indifference to serious medical needs of prisoners." Id.

 In determining whether a prisoner has been exposed to unreasonably high levels of ETS,

 
a court [must] assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate.

 Id. (emphasis added).

 In this case, Plaintiffs have shown, and the Court finds, that the involuntary exposure to significant amounts of ETS *fn6" is intolerable under contemporary societal standards. The defendant District of Columbia cannot hide from this fact. In enacting D.C. Code § 6-911, et seq., the District of Columbia clearly recognized the extreme dangers of ETS. D.C. Code § 6-911(a) states that

 
The Council of the District of Columbia finds that the inhalation of concentrated smoke resulting from the smoking of tobacco in facilities in which the public ...

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