Plaintiffs, who are confined at various correctional institutions in Maryland, filed suit alleging that, during their confinement, they have been subjected to environmental tobacco smoke (ETS) at levels which violate the Eighth Amendment’s prohibition on cruel and unusual punishment, the American With Disabilities Act and the Rehabilitation Act.  The Plaintiffs documented various ailments which doctors attributed to their exposure to ETS.  Defendants admitted that they are aware of scientific and medical studies indicating a link between exposure to ETS and an increased risk of lung cancer and heart disease but state that they do not know whether those risks are significant.  There was uncontroverted evidence that there has been, and still is, indoor smoking in Maryland’s correctional institutions.  A U.S. Magistrate Judge (Schulze, J.) ruled on April 14, 2000 that the “evidence demonstrates a violation of Plaintiffs’ Eighth Amendment rights but does not demonstrate a violation of Plaintiffs’ rights under the ADA or the Rehabilitation Act.”  The judge ruled that the Plaintiffs demonstrated that the level of smoke in the facilities was at such a level that it would cause or aggravate current or future serious illness and that the Defendants “acted with deliberate indifference to their health” by subjecting them to unreasonable levels of ETS.  Plaintiffs’ evidence showed that “the ETS level remains so unreasonable as to create an unconstitutional condition” and the Defendants failed to provide evidence “that non-enforcement of the smoking ban operates to enhance prison security or safety.”  The judge also ruled that the Plaintiffs are not entitled to relief from the ADA since they “have not established that they are qualified individuals with disabilities.”  The judge ruled that “all Defendants are entitled to qualified immunity on the claim that Plaintiffs’ future health has been damaged by their exposure to ETS” since the Defendants’ conduct did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”  See Alvarez, R., “Suit to Snuff Smoking in Prisons Gets Boost,” Baltimore Sun, April 18, 2000, 1B, 4B. McIntyre, et al. v. Robinson, et al., 2000 U.S. Dist. LEXIS 18912 (U.S.D.C. D.Md. 2000).

The court reviewed the magistrate’s order and, on November 21, 2000, denied both sides’ motions, finding that the plaintiffs produced evidence that, despite a ban on indoor smoking, ETS remains prevalent in Maryland’s prisons. On the issue of whether the defendants are entitled to qualified immunity, (i.e., whether a reasonable person would have knowledge that was has occurred in Maryland’s prisons was unconstitutional, “on the present record, neither side is entitled to prevail.”  The court also found that many factual issues are still in dispute and that, until “these matters are addressed, summary judgment for either party on this issue would be inappropriate.” Similarly, “the Court concludes that Plaintiffs have not removed all genuine doubt on the issue of whether they are being or have been exposed to levels of ETS that would put them at risk for future serious illness.”  Plaintiffs’ claim for damages was dismissed because the Defendants have not been shown to be indifferent in the past to the Plaintiffs’ future health.  Injunctive relief, while still available to the Plaintiffs as a potential remedy, will not “be ordered as of this time.”

Civil No. PJM-94-2871, (U.S. D.C., D.Md. 2000).  Consolidated with McIntyre, et al. v. Carter, et al., Civil No. PJM-95-190 and Malcolm v. Glendening, et al., Civil No. PJM-98-4109.