Several nonsmoking prisoners filed suit under 42 U.S.C. sec. 1983 and under section 504 of the Rehabilitation Act of 1973, alleging violations of the Eighth Amendment right to be free of cruel and unusual punishment because they were subjected to ETS in prison.  The defendant moved for summary judgment.  The judge ruled that, at the time the defendant acted, “there was no clearly established liability for exposing prisoners to ETS” and, thus, ruled that the defendant is entitled to prevail on his defense of qualified immunity.  The judge also ruled that the plaintiffs did not present sufficient evidence to show that the defendant acted in a manner that showed “deliberate indifference to the serious medical needs of prisoners.”  However, the judge noted that if the new smoking policy at the prison were not enforced, or enforced in such a manner that the plaintiffs were excluded from programs or activities because of their handicaps, plaintiffs could file a new lawsuit with an “increased likelihood of finding deliberate indifference . . . .”

No. CIV A 91-5046 (U.S.D.C. E.D. Penn. 1993).