A pro se inmate, who was housed in a cell with a heavy smoker, brought a civil rights action against prison officials alleging violation of the Eighth Amendment due to his exposure to secondary cigarette smoke.  The U.S. District Court for the District of Nevada granted a directed verdict for the prison officials; the inmate appealed.  The Court of Appeals reversed in part, ruling that even if the inmate cannot show that he suffers from serious, immediate medical symptoms caused by exposure to secondary smoke, compelled exposure to that smoke is nonetheless cruel and unusual punishment if at such levels and under such circumstances as to pose an unreasonable risk of harm to the inmate’s health.  Citing Avery v. Powell, supra, the Court noted that ” . . . . our society’s attitudes have evolved to the point that unwanted exposure to ETS [environmental tobacco smoke] may amount to a violation of ‘society’s evolving standards of decency.'”  The Court also ruled that Nevada’s antismoking statute applies to prison libraries and creates a liberty interest in smoke-free prison libraries protected by the due process clause.  See “Judges Will Book a Cell the Way Most Headwaiters Seat Customers,” Wall Street Journal, March 1, 1991, B1; “Cruel Air,” American Bar Association Journal, May 1991, 88; “These Inmates Really Want to Kick Butts,” Legal Times of Washington, June 24, 1991, 1, et seq.; and Cox, D., “McKinney v. Anderson: Cruel and Unusual Smoke — Eighth Amendment Limitations on Conditions of Confinement in Prisons,” Journal of Contemporary Law, Vol. 18, No. 1, 131-157 (1992).

The U.S. Supreme Court on October 15, 1991 voted 6 to 2 to set aside the Court of Appeals ruling, and remanded the case back to that court so that it would reconsider the case in light of a Supreme Court decision (Wilson v. Seiter, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)) that limited the ability of inmates to establish that prison conditions violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  See Carelli, R., “Justices Spurn Nonsmoker’s Prison Appeal,” Boston Globe, October 16, 1991, 3; The case was retitled Helling v. McKinney.

On March 27, 1992, the Court of Appeals for the Ninth Circuit in McKinney v. Anderson, 7.1 TPLR 2.15, after reconsidering the case in light of the Wilson v. Seiter decision, ruled that McKinney is still entitled to go forward with his case and, thus, reinstated its February 1991 order vacating summary judgment against him.  The defendants appealed and, on June 1, 1992, the U.S. Supreme Court granted certiorari, 60 LW 3844 (1992).  See 7.3 TPLR 3.123 and 61 LW 3025.  The Supreme Court heard oral argument on January 13, 1993 in Helling v. McKinney, No. 91-1958, 61 LW 3518.  See Himelstein, L., “Supreme Court Plans to Consider Prisoner’s Right to Smoke-Free Cell,” Legal Times, July 6, 1992, 13; Wohl, A., “Where There’s Smoke,” American Bar Association Journal, December 1992, 55-56; and Peck, R. and Williams, C., “Prisoner Rights,” American Bar Association Journal, January 1993, 42.

On June 18, 1993, the Supreme Court, by a 7 to 2 vote in Helling v. McKinney, 113 S.Ct. 2475, 509 U.S. 25, 125 L. Ed.2d 22, 61 LW 4648, 8.2 TPLR 2.201 (1993), held that “[w]e cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to ETS.” The court also rejected “petitioners’ central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment.”  The Supreme Court affirmed “the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health.”  See Biskupic, J., “Non-Smoking Prisoner Is Free to Sue, Justices Rule,” Washington Post, June 19, 1993, A10; Greenhouse, L., “Court Offers Inmates a Way to Escape Prison Smokers,” New York Times, June 19, 1993, 8; “Even a Lifer Has Rights,” New York Times, June 20, 1993, section 4, page 16; Ginestra, L., “Environmental Tobacco Smoke: Cruel and Unusual Punishment?” University of Kansas Law Review, Fall 1993, 169-199; Vaughn, M. and del Carmen, R., “Legal and Policy Issues From the Supreme Court’s Decision on Smoking in Prisons,” Federal Probation, September 1993, 34-39; Oxford, R., “Eighth Amendment ETS Claims: a Matter of Human Dignity,” Oklahoma City University Law Review, Fall 1993, 505-558; 28 Suffolk University Law Review, 200-207, Spring 1994; Gizzi, L., “Helling v. McKinney and Smoking in the Cell Block: Cruel and Unusual Punishment?” American University Law Review, Spring 1994, 1091-1134; Kinsler, J., “Sensible Application of Stare Decisis or a Rewriting of the Constitution: An Examination of Helling v. McKinney, 13 St. Louis U. Public Law Review 705-728 (1994); Kane, J., “You’ve Come a Long Way, Felon: Helling v. McKinney Extends the Eighth Amendment to Grant Prisoners the Exclusive Constitutional Right to a Smoke-Free Environment,” 72 North Carolina Law Review 1399-1412 (1994); Kiggen, C., “Helling v. McKinney: Warning . . . . Second-hand Smoke May Be Cruel and Unusual Punishment,” 20 New England Journal on Criminal and Civil Confinement 453-480, Summer 1994;  Frazier, K., “Constitutional Law — Helling v. McKinney: Future Risks of Harm Actionable Under the Eighth Amendment,” 25 University of Memphis Law Review, 1479-1494, Summer 1995; and Whaley, S., “Update: Lawsuit Might Have Been Just a Smoke Screen for Parole Violator.” Las Vegas Review-Journal, September 15, 2003.

924 F.2d 1500, 6.2 TPLR 2.327 (9th Cir. 1991).