Avery v. Powell

A nonsmoking inmate brought a civil rights action against prison officials alleging that exposure to environmental tobacco smoke [ETS] subjected him to cruel and unusual punishment and deprived him of liberty interest without due process.  The District Court ruled that “conditions of confinement must be judged against society’s evolving standards of decency” and that “exposure to ETS is not merely discomforting and that conditions of plaintiff’s confinement may constitute punishment cognizable under the Eighth Amendment.”  Therefore, the Court denied the prison officials’ motion to dismiss the prisoner’s Eighth and Fourteenth Amendment claims.

695 F. Supp. 632, 3.9 TPLR 2.191 (D.N.H. 1988).