Plaintiff, who was a pre-trial detainee for four and one-half years, filed a pro se lawsuit in 1994 under 42 U.S.C. sec. 1983, action, alleging that inmates routinely violated the no-smoking policy causing him to be exposed to excessive levels of secondhand smoke and thus, to suffer difficulty in breathing, chest pains, dizziness, drowsiness, sinus problems, burning sensations in his throat and headaches. He asserted that he was forced to share cells with smokers and suffered from chest pains, dizziness and exhaustion as a result of his exposure to ETS.  He alleges that he complained to officials many times — all to no avail — about these conditions. He sought monetary damages for actual injuries suffered and for the increased risk of future harm as a result of exposure to secondhand smoke at the jail. The district court granted the Defendants’ motion to dismiss as to damages for actual injuries, but denied the motion to dismiss as to any increased risk of future injuries. Defendants filed a motion for summary judgment alleging, inter alia, that they are entitled to qualified immunity from liability.  The district court (Marovich, J.) noted that qualified immunity generally shields government employees performing discretionary functions from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.  In this case, the court ruled that “until Helling v. McKinney was decided in June 1993, it was far from ‘sufficiently clear’ to a reasonable official that involuntary exposure to ETS could potentially give rise to a valid Eighth Amendment claim.”  Therefore, the court ruled that the defendants are entitled to qualified immunity in their individual capacity but not entitled to it in their official capacity.  In a November 25, 1997 ruling, the district court, at 1997 U.S. Dist. LEXIS 19202, denied the Defendants’ summary judgment motion.  “Bound by the constraints of the summary judgment standard, it is clear that genuine issues of material fact remain as to whether or not excessively smoky conditions existed in Henderson’s environment, whether he was unwillingly exposed to such conditions, and whether his exposure — such as it was — is something which society chooses to tolerate.”

In 1997, the Defendants filed a motion for summary judgment as to any future injury claim.  The court granted the motion, at 196 F.3d 839, 1999 U.S. App. LEXIS 29969 (U.S.C.A. 7th Cir. 1999) finding that “there was no genuine issue of material fact as to the issue of whether Henderson could actually prove that he has suffered an increased compensable risk of future serious health problems that was proximately caused by the Defendants’ actions.”  The U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal, ruling that, to withstand summary judgment, “Henderson had to proffer competent and reliable expert medical testimony that there was a reasonable medical certainty that he himself faces some defined level of increased risk of developing a serious medical condition and that this increased risk was proximately caused by his exposure to second-hand smoke while detained at the Cook County jail.”  His only medical expert could not say that Henderson himself was likely to suffer a particular harm from that exposure.  Thus, the Court of Appeals ruled that “the link between Henderson’s exposure to second-hand smoke, and the claimed increased risk of developing artherosclerosis or some other serious injury is too attenuated and speculative to properly support an award of present monetary damages.”  A circuit judge (Fairchild, J.) dissented in part, arguing that a pretrial detainee — as opposed to a prisoner — “need only show that defendants knowingly imposed deprivation or pain amounting to ‘punishment’ and need not establish that the ‘punishment’ was cruel and unusual” and that Henderson’s claims in his complaint “are sufficient for a Fourteenth Amendment claim by a detainee.  See Sotos, J., “2d-hand Smoke Claims Draw 2 Conclusions from 2 Circuits,” Chicago Daily Law Bulletin, February 3, 2000, 5.  On June 19, 2000, the U.S. Supreme Court, without comment, refused to reinstate Henderson’s lawsuit.

1996 U.S. Dist. LEXIS 8331 (No. Ill., E.D. 1996).