MORRIS (LASHANE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 18, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000484-MR
LASHANE MORRIS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 07-CI-01073
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; ACREE AND COMBS, JUDGES.
COMBS, JUDGE:
LaShane Morris appeals the order of the Franklin Circuit
Court dismissing his petition for declaration of rights. After our review of the
record and the law, we affirm.
While an inmate at Eastern Kentucky Correctional Complex (EKCC),
Morris, who suffered from asthma, claimed that his condition was aggravated by
second-hand or environmental tobacco smoke. He filed a grievance with the
Department of Corrections in March 2007. In May 2007, a staff member
responded to the grievance, stating: “We have requested a transfer of Mr. Morris
to a smoke-free facility.” In June 2007, the Commissioner of the Department of
Corrections denied Morris’s transfer request and admonished the staff of EKCC to
be more diligent in enforcement of non-smoking areas. In July 2007, Morris filed
a petition for declaration of rights in Franklin Circuit Court requesting injunctive
relief consisting of transfer to a non-smoking facility and money damages of one
million dollars. The record indicates that between the time of the commissioner’s
denial and September 17, 2007, Morris was transferred to the Kentucky State
Reformatory, which is a non-smoking facility. Nonetheless, Morris continued to
pursue his action in Franklin Circuit Court.
On February 1, 2010, Morris filed a notice of submission of case for final
adjudication. Examining the substance of the form, the trial court at first treated it
as a motion for a judgment on the pleadings. Because Morris relied on medical
records that were not included in the pleadings, the trial court decided the motion
as one for summary judgment. The trial court dismissed the petition, finding that
Morris’s claims were either moot or that he failed to state a claim upon which
relief could be granted. This appeal follows.
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The issue before us is whether the trial court correctly found that Morris
failed to state an actionable claim.
Morris argues that his exposure to tobacco smoke at EKCC constituted a
violation of his rights under the Eighth Amendment of the U.S. Constitution
because he was subjected to cruel and unusual punishment. The Supreme Court of
the United States has held that in the medical context, “in order to state a
cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285, 929 (1976).
Morris argues that the Department of Corrections demonstrated deliberate
indifference when it failed to transfer him out of EKCC. We agree with the trial
court that the Department did not treat Morris with deliberate indifference and that,
therefore, there was no actionable claim.
Our nation’s highest court has stated that it is possible for a prisoner “to
prove an Eighth Amendment violation based on exposure to ETS.”1 Helling v.
McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 2481 (1993). However, in order to
prove that prison officials act with deliberate indifference, a petitioner must show
that the officials acted with “obduracy and wantonness.” Whitley v. Albers, 475
U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986).
We have not discovered a case in which Kentucky courts have addressed the
precise issue at hand. However, the District of Columbia Circuit has provided
1
Environmental tobacco smoke.
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some guidance. In a case involving Eighth Amendment claims based on exposure
to tobacco smoke within a prison, that court held that as long as an institution made
a good faith effort to enforce its restricted smoking policy, it did not exhibit
deliberate indifference. Scott v. District of Columbia, 139 F.3d 940 (D.C. Cir.
1998). Instead, such a claim – if any – would be one for negligence. Id. at 944.
In this case, the record shows that EKCC had a restricted smoking policy.
Smoking was allowed only in certain areas. Morris has not shown that EKCC
failed to exercise good faith in its enforcement. He actually has provided records
that show that the staff at EKCC tried to have him transferred to a smoke-free
facility. At some point, they were successful. We agree with the trial court that
Morris has not demonstrated a cognizable Eighth Amendment claim.
The Department of Corrections has urged us to consider that Morris’s claim
is prohibited by governmental immunity. However, we need not analyze that
argument because of the threshold failure to state a claim.
Accordingly, we affirm the Franklin Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lashane Morris, pro se
LaGrange, Kentucky
Jonathan S. Milby
Justice & Public Safety Cabinet
Frankfort, Kentucky
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