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• Smoking ban in federal prisons lifted: Court 

MONTREAL - The Federal Court has ordered a recently imposed smoking ban outside of federal prison buildings must be lifted.

Nineteen Quebec inmates serving lengthy federal sentences argued this month that a complete smoking ban introduced in federal prisons in 2008 was a violation of their rights.

Prohibiting smoking violates prisoners' right to "life, liberty and security of the person" and constitutes "cruel and unusual treatment," the prisoners argued in their Federal Court action seeking to overturn the ban.

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• VIDEO: Quebec prisoners fighting smoking ban 

Nineteen Quebec inmates are fighting a smoking ban inside prisons, saying it infringes on their quality of life and threatens the safety of other inmates.

The federal prisoners, which include a number of high profile biker gang members as well as an infamous drug kingpin, say that the ban violates their charter rights.

"The sentence in a penitentiary or in a prison is in itself a terrible, terrible punishment that is hard to bear and is very difficult for a person to go through, and there's no reason to make it worse," said prominent Montreal human rights lawyer Julius Grey, who helped the inmates launch their lawsuit Wednesday.

They say the smoking ban makes them stressed, angry and aggressive, and that if all prisoners are not allowed to smoke, it could make life dangerous for everyone inside. . . .

The prisoners who launched the suit include notorious drug trafficker Gerald Matticks, biker gang member Benoit Guimond, and Daniel Patry, who killed well-loved children's TV puppeteer Pierre Regimbald.

Federal prisons banned smoking inside and outside while on prison property in 2008. . . .

The union that represents 6,000 prison guards says tensions have decreased since the ban was put into place.

"In the year and a half since the tobacco has been in place we have not seen one single incident that can be attributed to the ban on tobacco," said Lyle Stewart of the Union of Canadian Correctional Officers.

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• Notorious inmates to challenge prison smoking ban 

MONTREAL — Nineteen inmates serving lengthy federal sentences — a who’s who of notorious Quebec killers and gangsters — will argue in court this coming week that a complete smoking ban introduced in federal prisons last year tramples their rights.

Prohibiting smoking violates prisoners’ right to “life, liberty and security of the person” and constitutes “cruel and unusual treatment,” the prisoners argue in a Federal Court action seeking to overturn the ban.

The Correctional Service of Canada decided to outlaw all smoking after discovering that a partial ban, which allowed smoking only outdoors, was being flouted. It is estimated that about three-quarters of federal inmates were smokers before the ban.

“The decision to implement a total smoking ban by (Correctional Service of Canada) management was made to protect the health and safety of staff and offenders,” agency spokeswoman Marilyne Guevremont said, declining further comment because the case is before the courts.

The plaintiffs, who had been smoking an average of two packs a day, include Gerald Matticks, the drug-trafficking leader of Montreal’s West End Gang, Benoit Guimond, a biker who shot a teenager outside a Montreal nightclub, and Daniel Patry, who murdered the puppeteer behind a popular Quebec children’s show. Many of them are serving life sentences for murder, but take away their cigarettes and they become trembling, nervous wrecks, court documents suggest.

“The prisoners have experienced various physical and psychological symptoms related to nicotine deprivation, notably: an increase in stress, in anxiety, in their aggressiveness, in their nervousness,” the action says.

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• Skolnick to allow tobacco during Indian ritual  

Director of Corrections Howard Skolnik told the Nevada Indian Commission Wednesday he will make an exception to the prison system's new tobacco ban for American Indian religious ceremonies.

Those ceremonies, which conclude with participants smoking a ceremonial pipe, will be allowed to have the limited amount of tobacco needed to share the pipe.

Skolnik said he is aware that will cause some inmates to suddenly develop an interest in sweat lodge ceremonies just to get access to tobacco.

He banned tobacco products from the prison system, for inmates and staff, effective July 1.

“You'll have 100 inmates turn out for the sweat lodge because they can use tobacco there,” he said.

And he said he anticipates that other religious groups in the prison system will want to add a sweat lodge ceremony to their practices.

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• Cigarette Ban Being Implemented in Va. State Prisons 

Virginia corrections officials have quietly begun banning cigarettes in some state prisons and plan to make the entire system tobacco-free by February 2010. The health measure follows a national trend but has left public-safety advocates worried that inmate control could become more difficult.

The policy represents the latest in a series of anti-smoking steps taken in a state where tobacco has dominated the economy and politics for generations. A ban on smoking in restaurants goes into effect Dec. 1, and Gov. Timothy M. Kaine (D) began the process in late 2006 of banning smoking in most state office buildings.

"We've all seen the writing on the wall, all around the country and over the past several years," said Larry Traylor, a spokesman for the Virginia Department of Corrections. He said prisoners and employees of Virginia's 32,600-inmate system were notified this year that tobacco would be banned completely after a one-year implementation period.

Already, eight of 40 prisons are either smoke-free or allow employees to smoke only in designated areas away from inmates . . .

Virginia follows the federal prison system, as well as states including California, Texas, Michigan and Colorado, in instituting smoking bans in prisons over the past few years. Maryland has banned tobacco products at all 24 state prisons, inside and out, since 2001.

As in other states, the effort in Virginia has raised concerns about maintaining safety in state prisons.

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• Tokyo police to try smoking ban for interrogations 

Offering suspects a cigarette during police questioning may become a thing of the past if a Tokyo police experiment with a ban on smoking in interrogation rooms works out.

The Tokyo Metropolitan Police will implement the ban on a trial basis from mid-February due to health concerns about second-hand smoke as well as worries that offering cigarettes from a police officer's own pack may be seen as doing the suspect a favour, Kyodo news agency reported on Monday.

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• Officials: Smoking ban in prisons working OK 

But now, after almost 12 months, there have been no major incidents to report.

“I think it’s actually worked better than I think anybody anticipated,” said Randy Hellman, a correctional officer at the Pinckneyville Correctional Center.

Prison officials also say the smoking ban has gone well.

“We will have an occasional violation with an inmate, staff or visitor in possession of tobacco, but those occurrences have been minimal,” said Illinois Department of Corrections spokesman Derek Schnapp. . . .

Schnapp said inmates got the opportunity to take smoking cessation classes. Prison stores began stocking nicotine patches and lozenges.

The state also begin offering inmates three pieces of sugarless, hard candy with meals in order to take their minds off of having a cigarette after eating.

In addition, the department believes a smoking ban already in effect in county jails helped with the transition. “We have not really seen anything that would relate fights to lack of nicotine,” Schnapp said.

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• Smokers Behind Bars Can Quit, Too  

In American prisons, tobacco is a way of life; smoking rates are more than triple the figure for the country as a whole. As a result, millions of prisoners risk smoking-related heart and lung diseases, liver problems and diabetes.

With the prison population swelling to more than 2.3 million, or roughly 1 percent of U.S. adults, such dangers are threatening more people than ever before.

Some correctional facilities have tried to ban tobacco, with mixed success. But new research describes a treatment that could help prisoners stop smoking: a program similar to those offered to people in the general population. . . .

In prison, though, non-smokers are still in the minority -- between 70 and 85 percent of prisoners smoke. That's partly an unintended consequence of a practice once thought humane: Until the mid-1980s, many facilities provided prisoners with free cigarettes. They often became the currency in the lockups' barter-based economies.

"Tobacco is integrated into the prison culture," said Ross Kauffman, a doctoral candidate at The Ohio State University, whose dissertation explores policies addressing prison tobacco use.

Despite their addiction, roughly 70 percent of smoking prisoners say they want to quit, about the same as in the general population.

"There's this myth that it's the only thing they have left. People ask: 'Why take away smoking?' But they want to quit, too," Cropsey said.

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• Prisons to outlaw smoking 

In Ohio, prisoners and their guards have been preparing since September to kick the habit for good, whether they like it or not.

Come March 1, all of the state's 32 institutions will be tobacco free. No cigarettes, no snuff, no chew, indoors or out.

Predictably, the policy change is being greeted with mixed reactions.

Chris Mabe is a corrections counselor at the Lorain Correctional Institution and vice president of the Ohio Civil Service Employees Association, which represents most of those who work inside the prison.

Mabe said the membership is concerned about the effects on a reduced staff, as well as the rights of guards and inmates co-existing in a high-stress environment. . . .

Terry Collins, director of the Ohio Department of Rehabilitation and Corrections, said the move is necessary for medical, economic and legal reasons.

With such a large percentage of inmate smokers, medical costs for Ohio's prisons approach $200 million a year. . . .

Legally, inmates have sued the state over secondhand smoke and some have raised questions on whether voter-approved smoking bans should extend to prisons.

In addition, the Ohio prison system is under a federal order to improve its delivery of health care.

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• $250k yearly on cigarettes for inmates 

The government spends $250,000 a year to provide free cigarettes for inmates because the law mandates it, Superintendent of Her Majesty's Prison Dr. Elliston Rahming said during a House of Assembly crime committee hearing yesterday.

Rahming said under the law the prison must provide each inmate with 20 cigarettes per week.

His revelation appeared to have stunned members of the committee who were questioning him on the operations of the prison and its role in the fight against crime.

"If we could take that same money and put it toward a resettlement allowance [for ex-convicts], might that not be a better use of those funds and those inmates who smoke can get their cigarettes from the commissary," the prison superintendent said.

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• Smoking banned in all Punjab prisons 

THE Punjab government has announced a ban smoking in all the prisons of the province.

Punjab Prisons Minister Chaudhry Abdul Ghafoor, while addressing the inaugural session of workshop on "Tobacco Smoking-A Preventable Epidemic" at the University of Health Sciences (UHS) on Tuesday, said the level of awareness about the hazards of smoking, second hand smoking, responsibilities and authorities under the law and the initiatives taken by the government for tobacco control was extremely low among the masses. He further said there was a dire need to evolve an effective strategy for the implementation of the existing laws. On this occasion, the minister announced an immediate ban on smoking in all the prisons of the province.

The workshop was organized by the UHS Centre for Health Environment Studies in collaboration with World Health Organization (WHO), Tobacco Control Cell, Ministry of Health, Punjab Health Department and Green Future.

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• Miss. inmate's secondhand smoke claim reinstated  

The 5th U.S. Circuit Court of Appeals is reinstating a Mississippi inmate's complaint about being exposed to second hand smoke in his cell at the state prison at Parchman. The three-judge panel said yesterday (Wednesday) that 56-year-old Jerry Marcus' 2006 lawsuit complaining of potential health problems due to second hand smoke is valid.

Marcus filed the suit in federal court in Greenville complaining that he couldn't get baby oil, skin lotion or hair grease. Marcus alleged in his complaint that he was transferred to more restrictive housing at Parchman in 2004 when MDOC adopted a new inmate classification system.

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• HEMPHILL v. ROGERS, et. al. (PDF) 

I. BACKGROUND

Pro se plaintiff James Hemphill (“Plaintiff”) was a prisoner at the Adult Diagnostic and Treatment Center (“ADTC”) in Avenel, New Jersey. Plaintiff alleges that, as a result of the chemicals added to Moving Defendants’ tobacco products that “make smokers addicted to the cigarettes,” he was “forced to suffer from the secondhand smoke that is produce[d] from there [sic] product.” (Id. at 8-11.) Plaintiff contends that “the only persons who benefit[] from the tobacco is [sic] the smoker[,] who is able to satisfy his addiction[,] and the tobacco manufacturer[,] who makes a profit from the sale, at the cost of my health and possibly future damage to my health.” (Id.) To describe his injuries, Plaintiff states that he has experienced “continued stomach problems through [a]cid [r]eflux [d]isease which is worsened from constant inhaling of second hand [sic] smoke, while incarcerated within this [i]nstitution

Plaintiff identifies “M. Bernstein & Sons Newark Tobacco & Candy Co.” as the “[s]ole tobacco vender to the state prisons.” (Id.) According to Plaintiff, M. Bernstein & Sons “[s]ells the tobacco products to the state institutional facilities for a profit and has no concern about the deadly health risk associated from secondhand smoke to non[-]smokers.” . . .

A. Plaintiff’s § 1983 Claim Fails Because Tobacco Companies are Not State Actors

In order to state a cause of action under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States, which was committed or caused by a person acting under color of state law. Even if Plaintiff had intended to allege that Moving Devendants provide their tobacco products for sale at ADTC, a “private firm does not become a state actor by selling its products to the government.” Several courts have held that tobacco manufacturers are private entities, and that the mere sale of their products in state penal institutions does not transform them into state actors acting under the color of state law. Plaintiff’s Section 1983 claim against Moving Defendants must be dismissed.

B. The New Jersey Smoke Free Act Does Not Create a Private Right of Action

The NJSFA prohibits smoking in indoor public places and workplaces, with limited exceptions. See N.J. STAT. ANN. § 26:3D-58. However, the NJSFA provides no private right of action to plaintiffs aggrieved by a violation of its terms. N.J. STAT. ANN. § 26:3D-62(e) (“[T]here shall be no private right of action against a party for failure to comply with the provisions of this act.”). As a matter of law, Plaintiff cannot articulate a viable claim against Moving Defendants under the NJSFA.

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• MURRELL v. Texas Prisons 

As set forth above, Murrell has presented evidence that creates a genuine issue of material fact as to whether the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. The defendants, therefore, are not entitled to qualified immunity. See Rochon, 122 F.3d at 320.

The judgment for defendant Watts is AFFIRMED; judgment for the remainder of the defendant-appellees is REVERSED and REMANDED.

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• MURRELL v. CASTERLINE, et. al. 

Murrell has established that a genuine issue of material fact exists concerning whether the defendants were subjectively deliberately indifferent to his plight. Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), abrogated on other grounds, Booth v. Churner, 532 U.S. 731 (2001); Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Murrell’s summary judgment evidence shows that the defendants knew that Murrell was allergic to environmental tobacco smoke (ETS) and that ETS caused him to have migraines and high blood pressure. Murrell specifically asked the defendants to enforce the no smoking policy. His evidence, particularly the sworn statements of two other inmates, indicates that prison officials essentially looked the other way when inmates smoked in their cells or in other no smoking areas. He also asked prison officials to house him with inmates who did not smoke and gave the officials the inmates’ names. The prison responded that it was not feasible to move him. Accordingly, the district court erred when it granted the defendants’ motion for summary judgment. . . . .

the summary judgment evidence shows that a material issue of genuine fact exists regarding whether the defendants were deliberately indifferent.

The district court’s dismissal of Murrell’s suit is VACATED, and the case is REMANDED for further proceedings.

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