In November 1998 an inmate was assigned to a cell with a heavy smoker. The nonsmoking inmate suffered from a chronic throat condition that worsened after exposure to environmental tobacco smoke (ETS). Jones notified the defendants of his throat condition and made several requests for a change in housing, but his requests were denied. The U.S. District Court for the District of Nevada, at 190 F. Supp. 2d 1204, 2002 U.S. Dist. LEXIS 4544 (D. Nev. 2002), had granted the defendants’ motion for summary judgment, ruling that a “jury could not reasonably find that plaintiff’s 42 days in a cell with a heavy smoker amounted to cruel and unusual punishment.” Noting that, to “establish an Eighth Amendment violation based on ETS exposure, a prisoner must show (1) exposure to levels of ETS that pose an unreasonable risk of serious damage to his present or future health and (2) deliberate indifference on the part of prison officials,” the U.S. Court of Appeals for the Ninth Circuit ruled that “a jury could reasonably conclude that defendants were deliberately indifferent to Jones’ heightened vulnerability to ETS.” Thus, the court reversed the district court’s summary judgment and remanded the case for further proceedings.
56 Fed. Appx. 408, 2003 U.S. App. LEXIS 3202 (U.S.C.A. 9th Cir. 2003).