A prisoner at Attica Correctional Facility filed suit, alleging that prison officials were deliberately indifferent to his health care needs by placing him in a setting where he came into contact with environmental tobacco smoke (ETS) and, thus, had violated his Eighth Amendment right not to be subjected to cruel and unusual punishment.  He also alleged that ETS was so severe that it infringed on his First Amendment rights to associate with others in that he could not use the telephone, watch television, use the microwave oven or even sit in the common area of the dormitory.  The Defendants moved for summary judgment.  The Court (Heckman, J.) granted summary judgment as to the First Amendment claim but denied it as to the Eighth Amendment claim, ruling that a “fact-finder could determine that the risk of future harm faced by plaintiff, given the conditions under which he is confined, is not a risk that society chooses to tolerate.

29 F. Supp.2d 141, 1998 U.S. Dist. LEXIS 20337 (U.S.D.C. W.D.N.Y. 1998).