Plaintiff, a pro se prisoner, filed a claim alleging that the warden, Drew, of the prison where he is incarcerated, failed to enforce a smoking ban, thereby causing exposure to secondhand smoke that rose to a level of a violation of the Plaintiff’s rights under the Eighth Amendment. He alleged that “he acquired asthma and suffered asthma symptoms, chest pain eye irritation, breathing difficulties, fatigue and dizziness” after his exposure to SHS. Previously, Colon’s claims against other defendants had been dismissed, but not the claim as to Drew. Defendant Drew filed a motion for reconsideration, arguing that the Court had failed to consider properly whether Drew was entitled to qualified immunity and that this error justifies reconsideration. The Court allowed the motion to reconsider, ruling that the actual dispute between the parties “is not factual – rather, it indicates a difference of opinion over what is adequate enforcement.” A U.S. District Court Judge granted summary judgment in favor of the defendant-appellee warden on qualified immunity grounds. The defendants’ motion for summary judgment was granted in full.
On appeal, in Colon v. Drew, et al., 2009 U.S. App. LEXIS 12135 (U.S.C.A. 2nd Cir. 2009) The warden had argued that he took sufficient action to protect Colon from SHS. The U.S. Court of Appeals for the Second Circuit vacated the district court judgment, ruling that “Colon has raised genuine issues of material fact with respect to the subjective requirement of Helling” v. McKinney.
2007 U.S. Dist. LEXIS 92376.