Alvarado v. Litscher, et al.

A nonsmoking inmate who “suffers from severe chronic asthma,” filed a civil rights lawsuit alleging that the state corrections department, the warden and the health services manager violated his Eighth Amendment rights by acting with deliberate indifference to his complaints about his exposure to environmental tobacco smoke (ETS).  Alvarado “claims that other prisoners in the unit smoked in violation of prison policy because the guards were frequently not at their post to enforce the smoking ban.” He also claimed that because smoking is permitted in common areas of the prison, he is unable to participate in programs that would enhance his chances of being paroled.

The district court denied the defendants’ motion to dismiss.  The Court of Appeals for the Seventh Circuit affirmed, ruling that “Alvarado’s complaint stated an Eighth Amendment claim when he alleged that because of the prison officials’ deliberate indifference, he was being exposed to levels of ETS which aggravated his chronic asthma, thereby endangering his existing  health…He also state a valid claim as to his future health under Helling v. McKinney..”

267 F.3d 648, 2001 U.S.App. LEXIS 21109, 16.5 TPLR 2.290 (U.S.C.A. 7th Cir. 2001).