Exposure to drug smoke at County jail gives rise to Fourteenth Amendment case

The inmate at the Orange County jail in upstate New York sued his jailers, claiming he was exposed to second-hand smoke from K2, a synthetic canninoid at the jail. The district court dismissed the case, claiming plaintiff did not assert a claim that the jailers were deliberately indifferent to a substantial health risk. Plaintiff wins the appeal as the Court of Appeals reinstates the case.

The case is Michel v. Orange County, a summary order issued on February 7. Plaintiff claims the secondhand smoke gives rise to a deliberate indifference case under the Fourteenth Amendment, which requires jailers to avoid exposing inmates to serious health risks. The Court of Appeals says plaintiff has pled a plausible case because he asserts the prison environment was permeated with K2 drug smoke resulting from the under-enforcement of jailhouse rules and overcrowding, as well as lousy ventilation. Plaintiff complained internally about this through a grievance, as required under the Prison Litigation Reform Act (PLRA).

The Court of Appeals (Leval, Parker and Merriam) holds that plaintiff's complaint sufficiently asserts a claim under the Fourteenth Amendment, either under a failure-to-train theory or an unconstitutional practice theory, both cognizable under Section 1983. I can tell you from experience that these are difficult theories of liability, as such Monell claims are frequently dismissed because the plaintiffs simply cannot meet the high bar set by the courts to hold counties and cities liable. (When that happens, the plaintiffs have to sue individual officers instead). But here, the allegations in the complaint support a claim against the County and not just individual officers, as plaintiff asserts the K2 drug smoke was so widespread that municipal policymakers were aware of the problem but did nothing to remedy it. Plaintiff also asserts claims against individual correction officers, who were allegedly aware of the problem but did not protect plaintiff's civil rights to be free from exposure to harmful smoke. 

The Court of Appeals thinks this case may be strong enough to have the court appoint plaintiff a lawyer to handle the case in the trial court. The Court of Appeals does not make appointments like this very often, as there is of course much skepticism about inmate cases, many of which are thrown out of court from the outset. But a pro bono attorney handled the appeal, so that suggests the Second Circuit thought at the outset that this case had some promise. But this victory is an early one for plaintiff, as he still must take depositions and prove his case in discovery. Once discovery is over, the County will probably move again to dismiss the case, this time on a motion for summary judgment.