A nonsmoking prisoner filed a pro se action claiming, inter alia, that upon entering prison he requested non-smoking housing but was told be Correctional Officer Widden that Patel would be required to inform his cellmates of the smoking ban.  Patel alleged that he was placed in a cell with a chain smoker who regularly invited other prisoners to smoke in the cell.   The Defendants filed a motion to dismiss, claiming sovereign immunity and a lack of subject matter jurisdiction.  According to the Magistrate Court which submitted an Interim Report and Recommendation to the District Court, Patel “has more than adequately pleaded he was exposed to unreasonably high levels of ETS [environmental tobacco smoke] while confined at FCI Bastrop.”  Moreover, Patel stated in his complaint that three named defendants “allegedly ignored the [no-smoking] policy and did nothing to protect Plaintiff from exposure to second-hand smoke.”  Thus, the motion to dismiss these claims is denied.

2007 U.S. Dist. LEXIS 71374 (U.S.D.C. W.D. Tex. 2007).