A pro se prisoner filed a civil rights action under 42 U.S.C. sec. 1983 due to his exposure to secondhand smoke (SHS) while incarcerated.  A U.S. Magistrate Judge issued a Report and Recommendation that the defendants’ motion for summary judgment be denied.  The U.S. District Court upheld that decision, ruling that “the Magistrate Judge did not err in her ultimate conclusion that the defendants are not entitled to qualified immunity” since prisoners have a right not to be exposed to SHS that presents a serious risk to their health and to be removed from places where smoke hovers.  The Court further ruled that discovery remains to be done in this case and that questions remain, “particularly regarding the severity of plaintiff’s medical condition, the extent of each defendant’s specific knowledge regarding plaintiff’s condition, and their responses based on that knowledge.”

2007 U.S. Dist. LEXIS 37771 (U.S.D.C. W.D. Mich.).