A plaintiff inmate filed a civil rights action, alleging that prison officials and a nurse exposed him to environmental tobacco smoke (ETS), were deliberately indifferent to his complaints of present and future medical harm, failed to address his medical complaints and that the prison’s smoking policy was disregarded.  Defendants brought motions for summary judgment, failure to exhaust administrative remedies and for qualified immunity.  The Court ruled that Johnson had exhausted his administrative remedies and that his requests for injunctive and declaratory relief were moot because he had been transferred to another facility.  “The Court agrees with the circuit decisions which support the conclusion that Plaintiff’s claims state a cognizable future injury under the Eighth Amendment, and that Plaintiff should be allowed the opportunity to prove his injuries.”  The department’s smoking policy, which states that it is a lower priority to considerations of security, “is in direct conflict with Helling, because the policy fails to properly consider health concerns.”   The Court also ruled that the prison officials and the nurse “never considered the consequences of future health problems, but were only concerned with administrative convenience.”  Thus, they were not entitled to qualified immunity.  “The Court finds that a reasonable person should have known that Plaintiff’s constitutional rights were being violated by his exposure to ETS…Under no standard of decency could it be contended that leaving a nonsmoker in a small enclosed cell for 19 hours a day with a habitual cigar smoker is reasonable.”  The Court concluded that the “facts show that Defendants knew of Plaintiff’s complaints regarding ETS exposure, as well as his alleged ailments resulting from exposure , and did nothing to alleviate the problems.”

316 F. Supp. 2d 307, 2004 U.S. Dist. LEXIS 7434 (U.S.D.C. E.D. Va. 2004).