Clemmons v. Bohannon, [“Clemmons II”]

In an 8 to 1 decision, the Tenth Circuit Court of Appeals affirmed the dismissal of the prisoner’s complaint, saying that the allegation of exposure to ETS “in a penitentiary setting, without more, is not enough to satisfy the subjective component of cruel and unusual punishment.”  The dissent (Seymour, J.) stated that “the majority disregards compelling evidence, of which we may take judicial notice, that exposure to ETS does indeed pose a serious health risk.”.

956 F.2d 1523, 7.1 TPLR 2.17, (10th Cir. 1992).