Atkinson brought a civil rights lawsuit, alleging that the defendant prison officials subjected him to cruel and unusual punishment due to, inter alia, exposure to ETS. The prison officials’ motion for summary judgment was denied by the U.S. District Court for the District of Delaware. The prison officials appealed the denial of their motion. The U.S. Court of Appeals for the Third Circuit affirmed the denial of the defendants’ motion for summary judgment with respect to the inmate’s ETS, retaliation and excessive force claims. The Court of Appeals noted that, after Atkinson sought help in his efforts to get away from the smoke, “the treating nurse responded that she was unable to transfer him to a cell with a nonsmoking roommate.” The Court of Appeals concluded that “the District Court correctly determined that the level of ETS to which Atkinson claims he was exposed and his symptoms justify the denial of qualified immunity.”
316 F.3d 257, 17.8 TPLR 2.612, 2003 U.S. App. LEXIS 1237, (U.S.C.A. 3rd Cir. 2003).