A nonsmoking prisoner filed a 42 U.S.C. sec. 1983 action seeking monetary damages and injunctive relief and alleging that the Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment.  King alleges that the Defendants have failed to prevent  him from being exposed to secondhand smoke during his incarceration.  Defendants moved for summary judgment.  A magistrate concluded that there remain genuine issues of material facts regarding whether the Defendants violated King’s Eighth Amendment rights, whether Defendants were entitled to qualified immunity and whether the Plaintiff was entitled to injunctive relief.  The U.S. District Court adopted the magistrate’s recommendation, noting that “neither party has presented evidence about the amount of smoke that enters Plaintiff’s cell, how Defendants enforce the no-smoking policy, what steps have been taken to minimize Plaintiff’s exposure to ETS, and how Plaintiff is affected by ETS.”  The court denied the Defendant’s motion for summary judgment.  The court also, at 2008 U.S. Dist. LEXIS 74982, ordered that the Plaintiff’s motion for immediate preliminary injunctive relief be denied since he “has not established that he will suffer irreparable harm absent immediate injunctive relief.”

In February 2010, the U.S. Magistrate Judge issued a Report and Recommendation, at 2010 U.S. Dist. LEXIS 30144.  He concluded that, since King “has not presented any factual evidence suggesting that his exposure to ETS caused him anything beyond discomfort,” the defendant’s motion for summary judgment should be granted.  However, the U.S. District Court, at 2010 U.S. Dist. LEXIS 29666, ruled that King “has presented an issue of fact regarding whether he has a serious medical need and whether he endured unreasonably high exposure to ETS that society would consider violative of contemporary standards of decency.”  Therefore, the court rejected that part of the Magistrate’s Ruling and Recommendation and denied the Defendants’ motion for summary judgment.

2008 U.S. Dist. LEXIS 23946 (U.S.D.C. W.D. Mich. 2008).