LANGUAGE

Crowder, et al. v. Kelly, et al.

Then-current and former prisoners at a District of Columbia correctional facility sued in this consolidated action, alleging that, as non-smokers, they were subjected to high levels of environmental tobacco smoke ("ETS") in violation of their rights under the 8th Amendment to the U.S. Constitution prohibiting cruel and unusual punishment.  In this order, the Court granted the petitioners' motion for a preliminary injunction, ordering that the facility immediately transfer petitioners to non-smoking quarters, enforce the existing non-smoking policy (including discipline of both guards and prisoners who violate the policy) and that a special master be appointed to ensure compliance with the order.

In granting the injunction, the Court cited numerous factual allegations which included "unrefuted sworn affidavits detailing exposure to ETS" which made it "clear from these affidavits that the smoking policy is not being enforced."  The Court further noted that this lack of enforcement is particularly harsh on prisoners with pre-existing medical conditions, citing the continued and pervasive exposure of ETS to plaintiffs which included an insulin-dependent diabetic and another suffering from tuberculosis.  Furthermore, the Court noted that it was undisputed that existing ventilation was inadequate and no action was taken after lack of enforcement was brought to the attention of prison officials. In evaluating the prisoner's likelihood of success on the merits of their 8th Amendment cause of action, the Court cited Helling v. McKinley, where the Supreme Court had ruled that such a violation exists where prisoners are exposed to unreasonably high levels of ETS that amount to "deliberate indifference to health consequences," which exists "where a prison official 'knows of an disregards an excessive risk to inmate health and safety'."  The Helling Court defined "unreasonably high levels of ETS" as situations where "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."