A nonsmoking inmate filed a pro se lawsuit alleging that prison officials subjected him to secondhand smoke caused by inmates who were allowed to smoke in their cells. Durham alleged that his Eighth Amendment rights were violated by the Defendants, who filed a motion for summary judgment. Durham offered evidence from James Repace, an expert who testified as to the health effects of secondhand smoke in general. However, he was not allowed to testify as to the extent of Mr. Durham’s exposure “because he did not reliably apply his methodology to derive the opinions.” The Court granted the Defendants’ motion for summary judgment, ruling that Mr. Durham’s evidence that he suffered headaches, watery and itchy eyes, difficulty breathing, migraine headaches and coughing “is not sufficient to establish that his exposure level was unreasonable.” Thus, Durham could not meet his burden of proving that his Eighth Amendment rights were violated.
2010 U.S. Dist. LEXIS 23035 (U.S.D.C. D. Colo. 2010).