Published: May 16, 2008 11:31 am      

Miss. inmate’s secondhand smoke claim reinstated

JACKSON, Miss. — Jerry Marcus had complaints about his stay at the state prison at Parchman.

He couldn’t get baby oil. He couldn’t get skin lotion. He couldn’t get hair grease. His cell was too cold and guards wouldn’t give him long underwear. Although his cell was supposedly in a smoke-free area, he complained of exposure to secondhand tobacco smoke.

He sued in federal court in Greenville in 2006 for damages from emotional distress and potential health problems, including high blood pressure and damages to blood vessels from the second hand smoke.

The Mississippi Department of Corrections denied all of Marcus’ allegations.

U.S. District Judge Glen H. Davidson threw out Marcus’ lawsuit in 2007.

The 5th U.S. Circuit Court of Appeals on Wednesday reinstated that portion of Marcus’ complaint dealing with secondhand smoke.

Marcus, 56, was sentenced to life in prison in 1988 for a homicide conviction from Lowndes County. MDOC transferred him from Parchman to the Wilkinson County Correctional Facility in Woodville in 2008.

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.

Under the new classification system, Marcus said he was assigned to a smoke-free zone but was nonetheless exposed to cigarette smoke. He also complained that he was denied personal hygiene products and long underwear.

In his June 25, 2007, ruling, Davidson said Marcus was not being punished only reclassified. Davidson said while the new housing was more restrictive, it did not create a significant hardship more than what would be expected while incarcerated.

Davidson said Marcus’ “sporadic and fleeting exposure to secondhand smoke, even if it causes coughing and nausea, does not rise to the level of a constitutional violation.”

The 5th Circuit upheld Davidson’s dismissal of the inmate’s reclassification, personal hygiene products and long underwear complaints.

The court, however, said the U.S. Supreme Court going back to 1993 has recognized potential existence of claims from exposure to environmental tobacco smoke.

The 5th Circuit said the Mississippi court should give Marcus a chance to prove his allegations that “prison officials were deliberately indifferent to his serious medical needs by exposing him to environmental tobacco smoke which posed an unreasonable risk to his health.”

“Although inartful, his complaint does not fail to allege sufficient facts to state a facially plausible claim for relief at this juncture, although the ultimate viability of Marcus’s claim is dubious,” the 5th Circuit said.

Wednesday’s ruling was issued by a panel of three 5th Circuit judges — Edith H. Jones, Edith Brown Clement and Leslie H. Southwick.