United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 29, 1998 Decided April 3, 1998
Nos. 97-7064, 97-7066, & 97-7067
Benjamin W. Scott, Roger Dawson, & Sylvester Smith,
Appellees
v.
District of Columbia,
Appellant
Appeals from the United States District Court
for the District of Columbia
(94cv01603)
(94cv02136)
(94cv02269)
Kathleen S. Beecher argued the cause for appellant. With
her on the briefs were John M. Ferren, Corporation Counsel,
Charles L. Reischel, Deputy Corporation Counsel, and Ron-
ald S. Flagg.
Douglas B. McFadden argued the cause for appellees.
With him on the brief was Athan T. Tsimpedes.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: When these lawsuits began,
Scott, Dawson and Smith were prisoners of the District of
Columbia in the Lorton Correctional Complex in Virginia.
Second-hand tobacco smoke at Lorton, they alleged in sepa-
rate complaints, violated the cruel and unusual punishments
clause of the Eighth Amendment to the Constitution. The
district court agreed and issued a permanent injunction or-
dering the District to provide each of them with a smoke-free
environment. See Crowder v. District of Columbia, 959
F. Supp. 6 (D.D.C. 1997). The District's appeal is mainly on
the ground that the court misapplied the standards articulat-
ed in Helling v. McKinney, 509 U.S. 25 (1993).
Events occurring after the district court's final order pres-
ent a problem of mootness. None of the three plaintiffs is
still jailed at Lorton. Scott completed his sentence and was
released more than a year ago. Dawson and Smith are now
serving time at the Northeast Ohio Correctional Center, a
private facility operated for the District. They were trans-
ferred to Ohio in September 1997 pursuant to s 11201(c) of
the National Capital Revitalization and Self-Government Im-
provement Act of 1997, Pub. L. No. 105-33, 111 Stat. 712, 734.
Normally, a prisoner's transfer or release from a prison
moots any claim he might have for equitable relief arising out
of the conditions of his confinement in that prison.1 It does
__________
1 See Cameron v. Thornburgh, 983 F.2d 253, 257 (D.C. Cir.
1993); Dorman v. Thornburgh, 955 F.2d 57, 58 (D.C. Cir. 1992); see
also Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997);
Stewart v. McGinnis, 5 F.3d 1031, 1037-38 (7th Cir. 1993); Johnson
v. Moore, 948 F.2d 517, 519-22 (9th Cir. 1991); Magee v. Waters,
810 F.2d 451, 452 (4th Cir. 1987); Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir. 1985); MacKinnon v. Talladega County, 745 F.2d
1360, 1363 (11th Cir. 1984).
not matter that Smith and Dawson are still being held under
the authority of the District of Columbia. The cases do not
distinguish between intra- and inter-jurisdiction transfers of
inmates. See Cameron, 983 F.2d at 257; Stewart, 5 F.3d at
1037-38; Martin, 780 F.2d at 1337; see also Dilley v. Gunn,
64 F.3d 1365, 1368 (9th Cir. 1995).
As to Scott, his release from confinement surely moots his
case. See Weinstein v. Bradford, 423 U.S. 147, 147-48 (1975);
Dorman, 955 F.2d at 58; Martin-Trigona v. Smith, 712 F.2d
1421, 1427 (D.C. Cir. 1983). Neither he nor the other two
plaintiffs are before us asking for damages. None of the
three complaints has blossomed into a class action. Each
plaintiff's request for injunctive relief stemmed from condi-
tions alleged to exist at Lorton.
Smith and Dawson are still in prison, but they are now in
Ohio. What is left of their complaints about second-hand
tobacco smoke at Lorton? The District answered at oral
argument that the cases are saved from mootness by the
"capable-of-repetition-yet-evading-review" doctrine. See
Christian Knights of the Ku Klux Klan v. District of Colum-
bia, 972 F.2d 365, 369-71 (D.C. Cir. 1992). This is plausible
but not particularly persuasive; nothing in the record tells us
the likelihood of Smith or Dawson winding up at Lorton
again.2 A more telling point, endorsed by all parties, stems
from the breadth of the injunction. It seems to apply no
matter where Smith and Dawson are incarcerated, so long as
they are under the District's jurisdiction. The District says it
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2 The Supreme Court must have pondered the same mootness
issue in Helling v. McKinney. At oral argument, counsel disclosed
that prisoner McKinney, whose complaint dealt with his exposure to
second-hand smoke at Nevada's Carson City State Prison, had been
transferred to Nevada's Ely State Prison. When one Justice asked
why this did not moot the case, counsel replied that McKinney could
be transferred back to Carson City. See Helling, 61 U.S.L.W. 3518,
3518-19 (U.S. argued Jan. 13, 1993). The Supreme Court's opinion
said nothing on the subject of mootness. The fact that McKinney
sought not only an injunction but damages (see 509 U.S. at 28)
cannot explain the Court's silence. Most of the opinion's legal
analysis concerned injunctive relief. See id. at 35-36.
treated the injunction this way when it transferred Smith and
Dawson to the Ohio facility. On this view, the controversy
remains alive so long as these two prisoners are held pursu-
ant to the District's authority, no matter where they are
held.3 This interpretation of the injunction saves the cases
from mootness. But it also exposes the injunction's defects.
The extraordinary scope of the decree, a decree following
these prisoners wherever the District incarcerates them, mis-
apprehends the demands of the Eighth Amendment. The
key decision is the Supreme Court's in Helling v. McKinney.
A prisoner "states a cause of action under the Eighth Amend-
ment by alleging that [prison officials] have, with deliberate
indifference, exposed him to levels of [tobacco smoke] that
pose an unreasonable risk of serious damage to his future
health." 509 U.S. at 35. The Court referred to the first
element--exposure to unreasonably high levels of second-
hand smoke--as "objective." Id. at 35, 36. To prove this
element, the prisoner must show (1) that "he himself is being
exposed to unreasonably high levels of" second-hand smoke;
and (2) that the exposure creates a risk of harm "so grave
that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk," id. at 36; see also Oliver v.
Deen, 77 F.3d 156, 159-60 (7th Cir. 1996); Simmons v. Sager,
964 F. Supp. 210, 212 (W.D. Va. 1997). The Court referred to
the second element--deliberate indifference--as "subjective."
Helling, 509 U.S. at 35, 36.
The district court quoted from Helling but then reformulat-
ed the standard into what it called a conclusion of law:
"involuntary exposure to significant amounts of [second-hand
smoke] is intolerable under contemporary societal standards."
Crowder, 959 F. Supp. at 8. This raises several questions,
not the least of which is how much is a "significant" amount?
A footnote to the opinion explained: "exposure to significant
amounts" means "any direct exposure to tobacco smoke,
whether from the same room or from an adjacent area." Id.
__________
3 The court's order commands the District to provide Smith and
Dawson with smoke-free quarters and common areas "for the
remainder of their incarceration." Crowder, 959 F. Supp. at 11.
at 8 n.6. If "any" exposure is intolerable, what does one do
with Helling's requirement that the inmate must prove an
"unreasonably high" level of smoke at the prison? And what
of Helling's requirement that exposure to second-hand smoke
must present a "grave" risk to the prisoner's health? Are we
to believe that any exposure to tobacco smoke, no matter
what the level, no matter what the length of time, poses a
grave health risk? The district court cited no scientific
studies to support that proposition and the plaintiffs offered
none. Given the law imbedded in the district court's formula-
tion--involuntary exposure to any level of second-hand tobac-
co smoke in prison violates the Eighth Amendment--it is
easy to see why the court's injunction would follow these
prisoners wherever the District incarcerated them. It is also
easy to see why the district court was mistaken.
Helling did not read the Eighth Amendment as mandating
smoke-free prisons. It is impossible to read any such per se
rule into Helling's "objective" element. It is also impossible
to find that these plaintiffs presented enough evidence to
satisfy Helling's standard, correctly understood. They did
put on some evidence of their involuntary exposure to some
second-hand smoke at Lorton. But the evidence consisted
merely of anecdotal accounts, such as testimony that there
"was smoking being done in the sleeping areas" and that
Lorton's Medium Security Facility was like "a nightclub."
J.A. 207, 251. Missing entirely from the plaintiffs' affirmative
case was any objective evidence of the level of second-hand
smoke. There was no "scientific and statistical inquiry into
the seriousness of the potential harm and the likelihood that
... injury to health will actually be caused by exposure."
Helling, 509 U.S. at 36. The only quantitative evidence
consisted of the District's measurements of the air quality in
Lorton's dormitories and common areas (including the areas
of which the plaintiffs complained). The measurements re-
vealed that the amounts of second-hand smoke were below
levels considered acceptable under the standards of both the
Occupational Safety and Health Administration and the
American Society of Heating, Refrigerating, and Air Condi-
tioning Engineers, standards which apply to buildings in the
District and Virginia.4 In short, Dawson and Smith failed to
prove that even while they were at Lorton, they were exposed
to such an unreasonable level of tobacco smoke that it posed a
serious risk to their future health. See, e.g., Deen, 77 F.3d at
160; Davidson v. Coughlin, 920 F. Supp. 305, 308-09 (N.D.
N.Y. 1996); Pryor-El v. Kelly, 892 F. Supp. 261, 267 (D.D.C.
1995); Jackson v. Berge, 864 F. Supp. 873, 882 (E.D. Wis.
1994); see also McNeil v. Lane, 16 F.3d 123, 125 (7th Cir.
1994). Needless to say, there is no evidence regarding their
present conditions of confinement in Ohio, or what those
conditions would be absent the injunction. Yet before an
injunction may issue the inmate must prove that he currently
"is being exposed to unreasonably high levels" of smoke.
Helling, 509 U.S. at 35 (our italics).
Both plaintiffs say they are suffering "from a physical
ailment that is aggravated by second-hand cigarette smoke."
Brief of Appellees at 4. Their expert witness, Dr. Albert
Munzer, testified that exposure to second-hand smoke would
aggravate the conditions of persons suffering from the plain-
tiffs' alleged health problems and would have an adverse
effect even on otherwise-healthy persons. The plaintiffs be-
lieve that, in light of this evidence, their involuntary exposure
to tobacco smoke at almost any level was unreasonable.
The district court apparently agreed with this line of
reasoning. See Crowder, 959 F. Supp. at 8-9. We do not.
Smith's evidence consisted of his statements that exposure to
__________
4 The District's air quality measurements were taken after the
district court had issued a preliminary injunction ordering the
District to enforce Lorton's policy regarding nonsmoking areas.
For this reason the court found the measurements "of little prac-
tical help," Crowder, 959 F. Supp. at 9 n.7. But it was never
proven that the conditions at Lorton were worse before the prelimi-
nary injunction than after. Dawson and Smith in fact claim that
prison officials ignored the preliminary injunction. See Brief of
Appellees at 6, 7. Furthermore, even the earliest measurements
were taken weeks after the preliminary injunction had expired. By
that time, any improvements in Lorton's air quality attributable to
the preliminary injunction might well have dissipated.
smoke caused him headaches, chest pains, and "a lot of
stress." J.A. 210. He identified no specific medical condi-
tion, and provided no records documenting any ailment.
Dawson, on the other hand, said he had been treated for
thyroid cancer and had a history of asthma. The District
contested the asthma claim, but we will assume it to be true.
Even so, Dawson failed to demonstrate a causal relationship
between his conditions and an increased risk of harm to him
from second-hand smoke. Dr. Munzer's testimony estab-
lished no such nexus. He never examined Dawson (or
Smith). He had no knowledge of Dawson's medical condition
or of the actual levels of smoke to which Dawson was
exposed. Yet Dr. Munzer testified that the health effects of
exposure to second-hand smoke "var[y] tremendously with
the individual," and "in order to assess the actual risk to the
plaintiffs in this case ... to a reasonable degree of scientific
or medical certainty," he "would certainly have to know ...
what the levels of exposure were" and would have to be
familiar with the plaintiffs' medical histories. J.A. 377, 387-
88.
Helling also required Dawson and Smith to prove "deliber-
ate indifference" on the part of prison authorities, 509 U.S. at
35-36, that is, to prove that the authorities were "knowingly
and unreasonably disregarding an objectively intolerable risk
of harm" to the plaintiffs' safety. Farmer v. Brennan, 511
U.S. 825, 846 (1994). The officials "must both be aware of
facts from which the inference could be drawn that a substan-
tial risk of serious harm exists, and ... must also draw the
inference." Id. at 837. On this aspect of the case, the
district court concluded that the plaintiffs had carried their
burden by showing that the Lorton officials were "unable or
unwilling" to enforce prison regulations banning smoking in
certain areas. Crowder, 959 F. Supp. at 9. This cannot be
right. The court heard no evidence demonstrating the exis-
tence of any substantial risk of harm. Yet there must be an
"objectively intolerable risk" in order for there to be a
"knowing and unreasonable" disregard of it. It makes no
sense to charge someone with improperly ignoring a danger
that never existed.
Besides, it is hard to see how imperfect enforcement of a
nonsmoking policy can, alone, satisfy Helling's subjective
element. That the District even has such a policy militates
against a finding of deliberate indifference. The Supreme
Court said as much in Helling, 509 U.S. at 36. See also
Davidson, 920 F. Supp. at 309; Pryor-El, 892 F. Supp. at
267. Here prison officials testified to their good-faith at-
tempts to enforce the prison's nonsmoking policy to the best
of their abilities. A fire protection specialist found the prison
in substantial compliance with nonsmoking rules during unan-
nounced inspections. Guards and prisoners caught ignoring
or violating the nonsmoking policy were disciplined. Steps
were taken to improve ventilation in problem areas about
which the prisoners complained. Grievances and requests
from inmates and prison physicians regarding exposure to
tobacco smoke were answered and acted upon. And again,
actual measurements of the amount of smoke in the prison
revealed that prison officials were doing a good job keeping
the environment reasonably smoke-free. Deliberate indiffer-
ence is characterized by "obduracy and wantonness." Whit-
ley v. Albers, 475 U.S. 312, 319 (1986). Those words do not fit
the actions of the prison officials here.
Reversed.