A prisoner alleged negligence, cruel and unusual punishment, physical, emotional and psychological pain and suffering for being forced to breathe secondhand tobacco smoke in prison.  He also alleges that the State of New Hampshire is violating RSA 155:64 (which took effect on January 1, 1991), which bans smoking in public buildings.  A pre-trial conference was held on May 9, 1994.  The defendants moved to dismiss, opposing the claim for injunctive relief because the plaintiffs are no longer incarcerated at the defendants’ prison.  On April 21, 1995, the court (Manias, J.) denied the motion to dismiss, ruling that “the Court may grant injunctive relief where the threat to the individual plaintiff has already passed but where the claim is one that is ‘capable of repetition yet evading review.'”  The court did allow the defendants’ motion to dismiss the claim alleging negligence since the plaintiffs did not claim present physical injury, which is necessary for recovering damages for emotional distress.  Upon reconsideration, the court reinstated the negligence claim.  The defendants then filed a motion to dismiss certain defendants, including the governor and the attorney general, in their official capacities.  That motion was denied (Manias, J.), at 10.7 TPLR 2.284, on November 6, 1995.  The trial began on July 8, 1996.  See Schmitt, B., “Smokes Spark Prison Lawsuit,” Concord Monitor, July 10, 1996, A-1, A-6.  On July 18, 1996, the jury returned a verdict for the defendant.  Plaintiffs appealed.  The verdict was affirmed in the spring of 1997.

(N.H. Sup. Ct., Merrimack Cty., No. 91-C-00372-WS, 1991).