Kelley, et al. v. Hicks, et al.

Kelley brought a pro se 42 U.S.C. sec. 1983 civil rights action, alleging that the defendants were deliberately indifferent to the future heath risks posed by his exposure to secondhand smoke in prison and that they failed to enforce Georgia Department of Corrections policies prohibiting smoking inside the Coffee County Correctional Facility, where he had been incarcerated. After cross motions for summary judgment, the magistrate judge recommended that the defendants’ summary judgment motion be granted, finding that Kelley had failed to show a risk to his future health and that the defendants were enforcing a no-smoking policy to the best of their ability.  The district court adopted the magistrate’s recommendation.  On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed, ruling that Kelley had failed to meet both the objective and subjective tests in Helling  v. McKinney.  The Court of Appeals ruled that Kelley failed to show that he is being exposed to unreasonable levels of secondhand smoke, did not allege that his cellmate is a smoker, failed “to proffer any evidence, other than his own self-serving statements, to show that the ventilation was not sufficient” and has since been released from prison.  Moreover, the Court of Appeals also ruled that Kelley would have failed the subjective Helling test since he offered “no evidence to show that the defendants acted with deliberate indifference.’

400 F.3d 1282, 2005 U.S. App. LEXIS 3140 (U.S.C.A. 11th Cir. 2005).