Mixon v. Roe, et al.,

A nonsmoking prisoner filed a pro se action pursuant to 42 U.S. C. sec. 1983, alleging that a prison official attempted to compel him to accept a smoker as his new roommate and, when Mixon complained, filed a rules violation report, charging him with disobeying a direct order.  Plaintiff then filed a grievance, which was denied.  A magistrate judge in October 2002 denied defendants’ motion to dismiss.  Plaintiff argued that the defendants had failed to train adequately its correctional officers as to enforcement of its no-smoking policy.  The U.S. Magistrate Judge ruled that “it is plaintiff’s burden to show defendants’ deliberate indifference to his exposure to second-hand smoke” and that Mixon had failed to meet the objective and subjective test in that regard.  Therefore, the Magistrate Judge  recommended that the defendants’ motion for summary judgment be granted.

2006 U.S. Dist. LEXIS 4443 (U.S.D.C. E.D. Cal.).