Elliott v. Board of Weld County Com'rs

796 P.2d 71 (1990)

Roderick F. ELLIOTT and Lorenzo D. Purvis, Plaintiffs-Appellants, v. BOARD OF WELD COUNTY COMMISSIONERS and Sheriff Ed Jordan, Defendants-Appellees.

No. 89CA0547.

Colorado Court of Appeals, Div. VI.

July 5, 1990.

Roderick F. Elliott, pro se.

Lorenzo D. Purvis, pro se.

Thomas O. David, County Atty., and Bruce T. Barker, Asst. County Atty., Greeley, for defendants-appellees.

Opinion by Judge SILVERSTEIN[*].

Plaintiffs, Roderick F. Elliott and Lorenzo D. Purvis, appeal the summary judgment entered in favor of defendants, the Board of Weld County Commissioners and Sheriff Ed Jordan. We affirm.

On May 9, 1988, the Board of Weld County Commissioners passed a resolution which prohibited smoking in all of the county's buildings. Plaintiffs, who were at one time incarcerated at the Weld County jail, instituted this action under 42 U.S.C. § 1983 (1982) seeking injunctive relief and monetary damages. On defendants' motion, the trial court entered summary judgment and dismissed plaintiffs' complaint.

On appeal, plaintiffs claim they have a liberty and property right to smoke tobacco products by virtue of § 25-14-102, C.R.S. (1989 Repl.Vol. 11A), which, according to plaintiffs, requires that public facilities include an area for people who wish to smoke. Plaintiffs therefore argue that enforcement of the county resolution violates the constitutional guaranties of due process and equal protection. The argument is without merit.

*72 Contrary to plaintiffs' assertions, nothing in § 25-14-101, et seq., C.R.S. (1989 Repl.Vol. 11A) requires that public buildings include an area for people who smoke. Moreover, § 25-14-105 expressly authorizes counties to regulate smoking in public places. We therefore conclude that the statute does not give rise to a constitutional right to smoke in a jail or prison. See Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983).

Plaintiffs next contend that enforcement of the resolution constitutes cruel and unusual punishment. We disagree.

The Eighth Amendment's prohibition against cruel and unusual punishment affords protection only against those conditions of confinement that involve the wanton and unnecessary infliction of pain, that result in the deprivation of basic human needs, or that are grossly disproportionate to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981).

Applying this principle to the instant case, we conclude that the enforcement within the Weld County jail of the resolution regulating smoking does not rise to the level of cruel and unusual punishment within the meaning of the Eighth Amendment. Accord Doughty v. Board of County Commissioners, 731 F. Supp. 423 (D.Colo.1989).

Plaintiff's remaining contentions are without merit.

Judgment affirmed.

STERNBERG, C.J., and NEY, J., concur.

[*] Sitting by assignment of the Chief Justice under provisions of the Colo. Const., art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1988 Repl.Vol. 10B).