A pro se prisoner brought a 42 U.S.C. sec. 1983 action against prison officials for deliberate indifference to his serious needs, claiming that environmental tobacco smoke (ETS) caused him to develop sinusitis and exposes him to the future risk of cancer.  A nonsmoking prisoner alleges that the DOCS, while it adopted a system-wide smoking policy in 1999, has inadequately enforced the policy.  Claims for money damages were dismissed as being barred by the Eleventh Amendment.  Various defendants moved for summary judgment.  The U.S. Magistrate Judge allowed the motion as to certain defendants, but denied it as to others.  The court “finds material issues of fact as to whether the smoking prohibition sufficiently resolved the ETS problem, and whether DOCS adequately enforced the no smoking policy.”  The court also noted that “societal tolerance for exposure to ETS has decreased significantly since Helling was decided in 1993, providing additional support for the need for prisons to not only have a policy against indoor smoking, but to effectively implement and enforce such a policy.”

2006 U.S. Dist. LEXIS 3118 (U.S.D.C. So. D. N.Y.).